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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`_________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_________________
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`SAMSUNG ELECTRONICS CO., LTD.
`Petitioner
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`v.
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`CALIFORNIA INSTITUTE OF TECHNOLOGY,
`Patent Owner
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`_________________
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`IPR2023-00133
`Patent 7,421,032
`_________________
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`PETITIONER’S REQUEST FOR REHEARING
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`
`
`
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`Case IPR2023-00133
`Patent No. 7,421,032
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`TABLE OF CONTENTS
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`INTRODUCTION ........................................................................................... 1
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`LEGAL STANDARD ..................................................................................... 3
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`I.
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`II.
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`III.
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`STATEMENT OF REASONS FOR RELIEF REQUESTED ........................ 3
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`A.
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`The Board Should Reconsider Its Assessment of the Merits of
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`Samsung’s Petition Under Fintiv’s Multi-Factor Analysis ................... 3
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`B.
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`The Board Should Hold this Petition Pending the Resolution of
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`an Ongoing Challenge to Fintiv’s Validity. ........................................ 11
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`IV. CONCLUSION .............................................................................................. 15
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`
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`i
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`Case IPR2023-00133
`Patent No. 7,421,032
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`I.
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`INTRODUCTION
`Petitioner Samsung Electronics Co., Ltd. (“Samsung”) respectfully requests
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`rehearing of the Patent Trial and Appeal Board’s Decision of May 4, 2023 (Paper
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`10, “Dec.”), which denied institution of inter partes review for claims 1-8 and 10-
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`22 (“the challenged claims”) of U.S. Patent No. 7,421,032 (“the ’032 patent”).1
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`Samsung’s petition
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`(Paper 1, “Pet.”) presented
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`three grounds of
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`unpatentability for the challenged claims primarily based on the Kobayashi
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`reference. Pet. at 3-4. Invoking NHK Spring Co. v. Intri-Plex Techs., Inc., IPR2018-
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`00752, Paper 8 (P.T.A.B. Sept. 12, 2018), and Apple Inc. v. Fintiv, Inc., IPR2020-
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`00019, Paper 11 (P.T.A.B. Mar. 20, 2020), the Board denied institution under
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`35 U.S.C. § 314(a) because of a parallel district court proceeding. Dec. at 11-13.
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`The Board should grant reconsideration. First, rehearing is warranted because
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`the Board erred in its overall balancing of the Fintiv factors. The Board
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`1 The Board should grant reconsideration and set this case for rehearing before the
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`Precedential Opinion Panel
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`(“POP”),
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`for
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`reasons stated
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`in Petitioner’s
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`contemporaneously filed request for POP review.
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`1
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`Patent No. 7,421,032
`misconstrued Director Vidal’s interim guidance on discretionary denials2 regarding
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`the compelling merits analysis with respect to Fintiv factor six to mean that if a
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`finding of compelling merits is not reached, then factor six cannot weigh against
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`discretionary denial. But Director Vidal’s Interim Guidance instructed only that,
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`when the merits are compelling, that automatically outweighs all the other Fintiv
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`factors, and requires institution. The Interim Guidance did not require the same
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`heightened compelling merits showing as part of the ordinary Fintiv balancing
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`inquiry, where an unpatentability challenge that is strong but not necessarily
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`compelling may (in combination with other factors) outweigh the factors that favor
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`denial. The Board (by a Precedential Opinion Panel (“POP”) if necessary) should
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`reconsider its erroneous analysis under Fintiv’s sixth factor, which infected the
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`overall multi-factor balancing assessment.
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`Second, if the Board nevertheless does not believe institution is warranted
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`under Fintiv, it should hold Samsung’s rehearing request until the resolution of a
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`pending Administrative Procedure Act (“APA”) challenge to the validity of the
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`Fintiv rule. If Fintiv is procedurally invalid, it cannot be relied upon to deny
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`2 Katherine K. Vidal, Memorandum, Interim Procedure for Discretionary Denials
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`in AIA Post Grant Proceedings with Parallel District Court Litigation (U.S.P.T.O.
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`June 21, 2022) (hereinafter, “Interim Guidance”).
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`2
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`Patent No. 7,421,032
`institution of Samsung’s petition on the basis of a parallel district court litigation.
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`Awaiting the resolution of an ongoing challenge to Fintiv’s legality would conserve
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`agency resources and serve the interests of fairness.
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`II. LEGAL STANDARD
`“A party dissatisfied with a decision may file a single request for rehearing.”
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`37 C.F.R. § 42.71(d). “The request must specifically identify all matters the party
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`believes the Board misapprehended or overlooked, and the place where each matter
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`was previously addressed in a motion, an opposition, a reply, or a sur-reply.” Id.
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`Institution decisions are reviewed on rehearing for an abuse of discretion. See
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`37 C.F.R. § 42.71(c). An abuse of discretion occurs when a “decision [i]s based on
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`an erroneous conclusion of law or clearly erroneous factual findings, or . . . a clear
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`error of judgment.” Apple Inc. v. DSS Tech. Mgmt., Inc., IPR2015-00369, Paper No.
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`14 at 3 (Aug. 12, 2015) (citing PPG Indus. Inc. v. Celanese Polymer Specialties Co.,
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`840 F.2d 1565, 1567 (Fed. Cir. 1988)).
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`III. STATEMENT OF REASONS FOR RELIEF REQUESTED
`A. The Board Should Reconsider Its Assessment of the Merits of
`Samsung’s Petition Under Fintiv’s Multi-Factor Analysis
`The sixth Fintiv factor requires the Board to consider, as part of its multi-
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`factor analysis, other “relevant circumstances in the case, including the merits.”
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`Fintiv, Paper No. 11 at 14. In considering the merits of Samsung’s petition under
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`Fintiv’s sixth factor, the Board asked whether Samsung’s petition “presents a
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`3
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`Patent No. 7,421,032
`challenge with compelling merits.” Dec. at 18 (emphasis added). The Board then
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`concluded that, because Samsung’s “showing of unpatentability is not compelling,”
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`the merits consideration “is neutral” as to whether review should be instituted. Dec.
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`at 19, 29 (emphasis added). In the course of its analysis, the Board repeatedly stated
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`that, even if it were to find that Samsung has “show[n] a reasonably likelihood of
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`success” on the merits, the Board must “apply a higher compelling merits standard
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`for purposes of determining whether to exercise [its] discretion to deny institution.”
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`Dec. at 30; see also Dec. at 32.
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`That, however, is not the correct default standard under Fintiv’s sixth factor.
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`The Board’s insistence on this higher showing as part of its merits assessment
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`misunderstands both Fintiv and Director Vidal’s Interim Guidance. The Interim
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`Guidance instructs the Board to institute review when the Board finds that the
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`petition “presents a compelling unpatentability challenge,” even if the other Fintiv
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`factors point toward denial. Interim Guidance at 4-5. But that means that a finding
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`of compelling merits under the sixth factor automatically outweighs all the other
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`Fintiv factors, and “alone demonstrates that the PTAB should not discretionarily
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`deny institution under Fintiv.” Id. at 5 (footnote omitted) (emphasis added). It does
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`not mean—as the Board here mistakenly believed—that the strength of a petition’s
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`merits is relevant to Fintiv’s multi-factor analysis only when such merits rise to the
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`level of “compelling.”
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`4
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`The Board’s mistaken approach is squarely contrary to Fintiv. Fintiv instructs
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`that the Board must engage in a “‘balanced assessment of all relevant circumstances
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`of the case, including the merits.’” Fintiv, Paper No. 11 at 5 (quoting Consolidated
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`Trial Practice Guide (“TPG”) (Nov. 2019) at 58). In particular, the Board must
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`“balance[]” the six factors enumerated in Fintiv, “tak[ing] a holistic view of whether
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`efficiency and integrity of the system are best served by denying or instituting
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`review.” Fintiv, Paper No. 11 at 6 (citing TPG at 58). If, however, the merits
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`assessment under the sixth factor were to come into play only when these merits rise
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`to the level of “compelling” (which is an exceedingly demanding showing, see Dec.
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`at 18-19), it would never effectively be part of the balancing exercise because it
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`would either outweigh all the other Fintiv factors (if the merits were compelling) or
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`be irrelevant (if the merits were less than compelling).
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`That is demonstrably not what Fintiv envisioned. Fintiv emphasized that the
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`merits consideration may ask “if the merits of a ground raised in the petition seem
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`particularly strong” (but not necessarily compelling)—a fact that would “favor[]
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`institution” (but not necessarily require it). Fintiv, Paper No. 11 at 14-15 (citations
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`omitted). Conversely, where “the merits of the ground raised in the petition are a
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`closer call,” that fact would “favor[] denying institution when other factors favoring
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`denial are present.” Id. at 15 (citation omitted). As Fintiv concluded, “there may be
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`strengths or weaknesses regarding the merits that the Board considers as part of its
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`5
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`balanced assessment.” Id. (citation omitted) (emphasis added). Fintiv’s insistence
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`on a balanced multi-factor analysis—one that considers both strengths and
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`weaknesses of the merits, and then balances them against the other five factors—is
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`contrary to the Board’s mechanical approach, where only a finding of “compelling
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`merits” could counterbalance the other factors.3
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`3 Those factors, moreover, did not uniformly favor denial of institution. As the
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`Board observed, the fourth factor, which examines overlap of issues between the
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`petition and the parallel proceeding, weighed against a discretionary denial. Dec. at
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`17-18. As part of its holistic balancing approach under Fintiv, the Board often
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`weighs the fourth factor more heavily relative to some of the other factors (e.g.,
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`instituting when a petitioner enters a Sotera stipulation irrespective of where the
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`other factors stand). This makes sense given the fourth factor, when weighing
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`against discretionary denial (as here), directly mitigates one of the main concerns
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`animating Fintiv—duplication of issues and risk of inconsistent adjudications
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`between the parallel litigation and the IPR. Interim Guidance at 5 (“the Fintiv factors
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`seek to avoid duplicative efforts between the PTAB and federal district courts”), 7
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`(explaining that a Sotera stipulation “mitigates concerns of potentially conflicting
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`decisions and duplicative efforts between the district court and the PTAB”).
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`6
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`Director Vidal’s Interim Guidance does not require a different result. The
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`Interim Guidance expressly reaffirmed Fintiv’s multi-factor balancing approach,
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`and sought only to “clarify[y]” its application. Interim Guidance at 1-2. As part of
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`that clarification, Director Vidal instructed the Board not to exercise its discretionary
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`denial authority “where a petition presents compelling evidence of unpatentability.”
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`Id. at 2. Given the heightened evidentiary showing required to find such compelling
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`merits, that determination “alone” outweighs all other Fintiv factors. Id. at 5; see
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`also CommScope Techs. LLC v. Dali Wireless, Inc., IPR2022-01242, Paper 23 at 3-
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`4 (P.T.A.B. Feb. 27, 2023). But that does not mean that, as part of Fintiv’s overall
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`balancing approach, an unpatentability challenge that is strong but not necessarily
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`compelling cannot (in combination with other factors) outweigh the factors that
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`favor denial, depending on the factors’ relative strength. In fact, the one instance
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`when Director Vidal affirmatively required the Board to find the merits to be
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`compelling is when she sanctioned petitioner for abuse of the IPR process. See
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`OpenSky Indus., LLC v. VLSI Tech. LLC, IPR2021-01064, Paper 102 at 47-49
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`(PTAB Oct. 4, 2022). The Board misconstrued Director Vidal’s Interim Guidance
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`by requiring the same heightened showing as part of the ordinary Fintiv balancing
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`inquiry.
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`This understanding of Fintiv is confirmed by other Board panels that, both
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`before and after Director Vidal’s Interim Guidance, have taken into consideration
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`7
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`the strong merits of a petition (even if found not to be compelling) under Fintiv’s
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`sixth factor when applying Fintiv’s multi-factor balancing approach. For example,
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`prior to the Interim Guidance, the Board has found the Fintiv factors weigh against
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`discretionary denial where the petitioner set forth a “strong case for the obviousness
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`of the challenged claims” under Fintiv factor six. See, e.g., VMware, Inc. v.
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`Intellectual Ventures I LLC, Paper 13 at 21-22 (P.T.A.B. Aug. 18, 2020); see also
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`Fintiv, Paper No. 11 at 14-15 n.29 (citing cases); Interim Guidance at 5 n.6 (citing
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`cases). In VMware, petitioner had made a stipulation under Fintiv’s factor four
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`similar to Samsung’s factor four stipulation in this case, and the Board similarly
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`found that the fourth factor weighs against discretionary denial. Id. at 19-20; see
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`also n.3. While the Board found that some Fintiv factors weighed in favor of
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`exercising its discretion to deny institution, VMware, Paper 13 at 17-18 (factor two),
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`20 (factor five), and others were neutral, id. at 16-17 (factor one), 18-19 (factor
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`three), the Board’s holistic review of the Fintiv factors led to conclude that the
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`overall balance-of-factors weighed in favor of institution in light of the factor four
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`stipulation (similar to the one made by Samsung here) and the strong merits of the
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`petition. Id. at 22.
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`Subsequent to Director Vidal’s Interim Guidance, Board panels have applied
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`Fintiv’s multi-factor balancing approach and instituted IPRs despite not finding the
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`unpatentability challenges to be particularly strong. See, e.g., Google LLC v.
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`8
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`Jawbone Innovations, LLC, IPR2022-01059, Paper 12 at 19-20 (P.T.A.B. Dec. 7,
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`2022) (instituting review even though the Board was “unable to discern whether the
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`merits [of the petition] are ‘particularly strong’”); Uber Tech., Inc. v. LBT IP II LLC,
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`IPR2022-00880, Paper 8 at 14 (P.T.A.B. Dec. 7, 2022) (instituting review even
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`though Fintiv’s sixth factor, including a merits assessment, was “neutral”).
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`Regarding a strong merits showing in this case, even though the Board did not
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`find the merits to be compelling, they are nevertheless strong. Samsung presented
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`three grounds primarily, based on Kobayashi, demonstrating unpatentability of the
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`challenged claims primarily based on Kobayashi. The challenges showed that
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`Kobayashi alone discloses or suggests all the limitations of the majority of the
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`challenged claims. See Pet. at 8-42. The Board’s basis for finding that the merits of
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`Samsung’s unpatentability challenges were not compelling centered on the
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`application of the agreed-upon construction of the “repeat” term in the challenged
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`claims. Dec. at 29-32. The Board recognized that Patent Owner does not dispute
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`Samsung’s proposed construction of the “repeat” term. Id. at 23-24. But the Board
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`found that Samsung’s application of this construction to its analysis of Kobayashi
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`“rests tenuously upon apparent logical leaps.” Id. at 29.
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`The Board’s finding was based purely on Patent Owner’s attorney arguments.
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`Dec. at 29-32. While having an opportunity to do so, Patent Owner did not submit
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`an expert declaration. Thus, the opinions of Samsung’s expert, Dr. Valenti, remain
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`9
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`unrebutted. This is particularly important here, where the challenged claims involve
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`complex technology as Patent Owner itself explained in prior IPRs involving this
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`patent family. See, e.g., Apple -219 IPR, Paper 76 at 15 (Dec. 27, 2018) (the Board
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`noting Patent Owner’s explanation that “‘there was nothing simple about developing
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`improved error-correcting codes, and many advancements in the field were the
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`product of laborious experimentation and surprising, unexpected and unpredictable
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`results’”) (citation omitted). Thus, without evidence to the contrary, and given
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`Patent Owner does not dispute the claim construction of the subject “repeat” term,
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`the merits of Samsung’s petition were strong, even if not compelling.4
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`4 The Board found that the sixth factor slightly favors discretionary denial also
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`because of its prior expenditure of resources involving the prior IPRs and the
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`outcomes of those IPRs. Dec. at 19-20. But it was Patent Owner that chose to
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`serially litigate its patents resulting in the staggered IPRs, and thus Samsung had no
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`control over conserving the Board’s resources in this regard. Pet. at 71. And
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`regarding the outcome of the prior IPRs, the Board failed to address Samsung’s
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`argument that, unlike the prior IPRs filed by other petitioners where Patent Owner
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`argued that the references being asserted did not qualify as prior art, lacked key claim
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`features, or were premised on combinations that are unpredictable, Samsung’s
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`petition showed that Kobayashi alone discloses or suggests all the limitations of the
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`To the extent Patent Owner attempts to disavow the broad claim construction
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`of “repeat” that it advocated for at the Federal Circuit (Paper 7 (POPR), 3-5) and
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`denies that Kobayashi’s generator matrix discloses matrix multiplication to generate
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`bits (id., 5-8), those are issues better suited for trial given the claim construction is
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`undisputed and Samsung’s unrebutted evidence regarding unpatentability.
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`The Board’s erroneous analysis under Fintiv’s sixth factor, which discounted
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`the merits of Samsung’s petition, in turn infected the overall holistic multi-factor
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`balancing assessment. For these reasons, the Board should grant rehearing and
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`reconsider its decision to deny institution under the proper application of Fintiv’s
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`multi-factor analysis.5
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`B.
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`The Board Should Hold this Petition Pending the Resolution of an
`Ongoing Challenge to Fintiv’s Validity.
`The Fintiv rule is currently subject of an ongoing Administrative Procedure
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`Act (“APA”) challenge to its validity. That challenge has been brought in the U.S.
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`majority of the challenged claims. See Pet. at 65-66; Paper 8 (Samsung’s Reply to
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`POPR) at 3; Dec. at 19-20.
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`5 As part of its merits consideration, the Board should also accord very limited—if
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`any—weight to the prior proceedings where it upheld the challenged patent claims
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`over different prior art. See Dec. at 19-20. The focus of the unpatentability inquiry
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`should be on the present challenge and the presently asserted prior art.
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`11
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`District Court for the Northern District of California. See Apple Inc. v. Vidal, No.
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`5:20-cv-06128-EJD (N.D. Cal.). The district court initially dismissed that lawsuit
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`as barred by 35 U.S.C. § 314(d)—the non-reviewability provision of the IPR statute.
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`The U.S. Court of Appeals for the Federal Circuit, however, reversed that dismissal
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`with respect to the claim that, in promulgating the Fintiv rule, the Director failed to
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`comply with the notice-and-comment rulemaking requirements. The Federal Circuit
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`held that the procedural claim is reviewable under the APA. Apple Inc. v. Vidal, 63
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`F.4th 1, 14-15 (Fed. Cir. 2023). The lawsuit is currently pending on remand before
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`the Northern District of California, with the procedural challenge to Fintiv poised to
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`be decided on summary judgment.
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`In the interests of efficiency, the Board should hold Samsung’s rehearing
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`request until this procedural challenge to Fintiv is resolved.6 Although it is beyond
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`the Board’s authority to determine whether the Director was required to follow the
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`notice-and-comment rulemaking procedures when promulgating Fintiv, the
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`challenge is meritorious. The APA “mandates that an agency use notice-and-
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`6 The Apple lawsuit challenges Fintiv as applied to IPRs. A similar challenge to
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`Fintiv with respect to post-grant reviews is pending before the U.S. District Court
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`for the Eastern District of Virginia in Daiichi Sankyo, Inc. v. Vidal, No. 1:21-cv-
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`00899 (LMB/JFA) (E.D. Va.).
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`comment procedures before issuing legislative rules.” Kisor v. Wilkie, 139 S. Ct.
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`2400, 2420 (2019) (citing 5 U.S.C. § 553(b), (c)). The America Invents Act (“the
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`AIA”) likewise permits the Director to adopt rules only by prescribing “regulations,”
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`35 U.S.C. §§ 2(b)(2), 316(a)—i.e., “rules” issued “pursuant to the notice-and-
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`comment requirements of [the] APA,” U.S. Telecom Ass’n v. FCC, 400 F.3d 29, 38,
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`40 (D.C. Cir. 2005); see also 35 U.S.C. § 2(b)(2)(B) (requiring use of APA’s notice-
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`and-comment procedures).
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`Fintiv establishes a substantive, or “legislative,” rule, not merely a general
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`statement of policy or procedure. Fintiv is “an agency statement of general or
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`particular applicability and future effect.” 5 U.S.C. § 551(4). Unlike a general
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`statement of policy, Fintiv leaves the Board no “discretion to follow, or not to
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`follow” it in a particular case. Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th
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`Cir. 1987). Further, the NHK-Fintiv rule is legislative—not procedural—because
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`the rule “alter[s] the rights or interests of parties” by defining circumstances under
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`which IPR may be denied. JEM Broad. Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir.
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`1994).
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`The rule cannot be defended as one adopted through adjudication because it
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`was not adopted as binding through adjudication. That occurred only through the
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`Director’s decision to designate NHK and Fintiv as precedential. Moreover,
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`adjudication is a “permissible mode of law-making and policymaking” “only” where
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`agencies are “unitary”—i.e., where “rulemaking, enforcement, and adjudicative
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`powers are combined in a single administrative authority.” Martin v. Occupational
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`Safety & Health Review Comm’n, 499 U.S. 144, 151, 154 (1991). Congress “divided
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`the delegation of rulemaking and adjudicatory powers between the Director and the
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`Board.” Facebook, Inc. v. Windy City Innovations, LLC, 973 F.3d 1321, 1351 (Fed.
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`Cir. 2020) (additional views of Prost, C.J., Plager & O’Malley, JJ.). To the Board,
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`Congress delegated only power to conduct PGRs. 35 U.S.C. § 326(c). That “is not
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`a delegation of authority to issue adjudicative decisions interpreting” the AIA, let
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`alone to issue regulations. Facebook, 973 F.3d at 1350. In contrast, Congress gave
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`the Director power to make rules by issuing regulations, see 35 U.S.C. §§ 2, 326(a),
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`but no adjudicative power. Facebook, 973 F.3d at 1349-50.
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`If the Board determines that Fintiv’s multi-factor analysis does not weigh in
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`favor of institution, considerations of efficiency and fairness would counsel awaiting
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`the conclusion of the APA challenge to Fintiv before resolving this rehearing
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`petition.7 If Fintiv is procedurally invalid, it cannot be relied upon to deny institution
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`7 The Board (or the Director) has authority to stay a case pending resolution of a
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`similar issue in other litigation. See, e.g., General Order in Cases Remanded Under
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`Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Circ. 2019) (P.T.A.B.
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`May 1, 2020) (Chief Administrative Patent Judge exercising “discretion” to impose
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`of Samsung’s petition on the basis of a parallel district court litigation. The delay in
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`resolution of Samsung’s rehearing request should not be overly long. The parties in
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`the Apple litigation have jointly proposed by the renewed summary judgment
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`briefing be conducted by November 2, 2023, with oral argument to be held shortly
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`thereafter. See Joint Status Report, Apple Inc. v. Vidal, No. 5:20-cv-06128-EJD,
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`ECF No. 145 at 1 (N.D. Cal. June 2, 2023). Nor would the delay prejudice the Patent
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`Owner, since the district court in the parallel litigation refused to stay the case before
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`it pending the resolution of Samsung’s IPR petition.
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`IV. CONCLUSION
`For all of the above reasons, Samsung respectfully requests that the Board
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`reconsider its Decision and institute inter partes review.
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`Dated: June 5, 2023
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`
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`Respectfully submitted,
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`/Robert A. Appleby/
`Robert A. Appleby
`Counsel for Petition
`Reg. No. 40,897
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`
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`an administrative stay in certain cases); see also TPG at 89-90 (discussing the
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`Board’s authority to stay proceedings on a case-by-case basis, in the context of
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`remand).
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`CERTIFICATE OF COMPLIANCE
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`Pursuant to 37 C.F.R. § 42.24(d), the undersigned certifies that the foregoing
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`Request for Rehearing complies with the page limit.
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`Respectfully submitted,
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`/Robert A. Appleby/
`Robert A. Appleby
`Counsel for Petition
`Reg. No. 40,897
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`Dated: June 5, 2023
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`Case IPR2023-00133
`Patent No. 7,421,032
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of the foregoing document was
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`served on June 5, 2023 via electronic mail directed to counsel of record for the Patent
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`Owner at the following:
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`Michael T. Rosato
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`Tel.: 206-883-2529
`Fax: 206-883-2699
`Email: mrosato@wsgr.com
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`Matthew A. Argenti
`WILSON SONSINI GOODRICH & ROSATI
`650 Page Mill Road
`Palo Alto, CA 94304
`Tel.: 650-354-4154
`Fax: 650-493-6811
`Email: margenti@wsgr.com
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`Patrick M. Medley
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`Tel.: 206-883-2593
`Fax: 206-883-2699
`Email: pmedley@wsgr.com
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`By: /Robert A. Appleby/
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