an input and to control these proceedings below and the evidence at the promise you had the set of this consolidated ip are going up and moving forward at the same time and will receive appeal the real party interests issue lays out a series of additional agency requirements that are relevant and crucial indeed to ask in deciding whether a stop will sort of fly on agency decisions there are a number of points there first of all the  i one case makes clear that the three fifteen bar is about establishing agency authority to act it's a present it's a jurisdictional question and i am i wrong in vaguely recall that issue preclu i don't have the knowledge or not to take issue with what you've sent but i would say that one of the primary prongs in the utah construction mining test is indeed whether the agency had jurisdiction to act in the first place and so what were dressing here's the fact that it was it was at the only piece of what you call agency jurisdiction then i guess the agency sometimes calls jurisdiction that the timing rule is this issue you litigated it before the board and then in those three proceedings it came to an end because there was no appeal and there's actually a difference we even care about those patents anymore but i'm trying to figure protections of rights to plan donors in this process and if we look at the utah construction mining test one of the things is that the ability to fully and fairly litigate now what we would look to it but i don't understand that there is three sixteen in which is that the petitioner has the burden of proof going forward now in terms of proving whether the utah construction factors are met here i think that the mere fact that there is a an error of law to control the i care or at least to review the things that activity in the budget was doing in preparation for this and so given that and given the fact that bungee has not asked for a rematch we believe that this court can decide this question without agreement you can decide that in fact this is not met here it depends i guess on what we think the issue is but if the issue is whether or not it was a real party in interest here that question and you're saying that the boy didn't have jurisdiction to decide that issue and that's why there's no collateral estoppel your honor in the ceiling or saying just if i had to stand the point the point is that if there's a real party interest problem then the boy doesn't have jurisdiction to we solve the merits of the and they wouldn't allow discovery that that subsection to apply i do absolutely agree that you don't and the fact that there was a motion made for discovery there was a request for documents those documents were solely in the hands of bunch of there was no opportunity aside for what amounts to a stroke of luck finding and some diligence of course finding the agreements on line between activision and bunch regarding dust in the process this is this is indeed once again it getting into this and forty fundamental of your own again i believe based on these factors that it does and what we what we've dealt with here is a situation where the board did not follow procedure sufficiently similar to those used in trials they didn't give an opportunity for discovery you're right you're correct we did make a motion for it correction of anything that was harmful is there nevertheless objection to some reason not for us or the board i guess at this point to apply while there are other decisions out there they were argued simultaneously the issues are the same in effect do you would you agree that for instance just to take an example if  merits based issues that you would be collaterally a start your i believe that is an accurate statement although where i would differentiate that from our situation here is we're talking about agency authority to act and so we don't have a situation in that other in the hypothetical that you've created that i understand where the agency has acted when they shouldn't have been able to or they've interpreted an agreement in him in a way inconsistent with law in order continue hearing the case when in fact the proper interpretation agreement would have shut them down and said you have no more ability to to make the statements is there or is there a distinction between making a determination for purposes of instituting certainly run i think what you're getting at is in fact we have evidence of actual opportunity control we have an evidence of opportunity control through this agreement and we've been in tile the discovery we certainly could have found differences of how the pats were example we haven't come in and tried to argue a change in the policy of the board as implementing which is the killer research factors and one of those is control or opportunity to control because we're denied discovery we've never been able to go out and get the evidence of the actual control of the actual communications between bungy and activision that led to a medication demand led to i guess what i'm asking is why are you conceding that taylor is a governing principle in connection with this particular world for two and a half years before bungee before just a new product was put at issue and bungee stepped in and six months later filed an i p r punji wasn't around for two and half years and suddenly the destiny product gets noted up and and they're they're in the case that activision desire review absolutely but in terms of following what the board is saying and how the board is applying the law we were simply working within their contract and we haven't come to you to ask for a change and one that point when we finally s there's a critical factual point here to clarify i think it it comes through both briefs but worth reiterating and that is the litigation between activision and worlds that is being referenced had nothing to do with it's never had anything to do with bungees never been a party to that no bungee product has ever been added to that litigation and it's a completely unreal there was chatter about the possibility there is a letter saying between from respect so why are we focusing so much on the patrol or even taylor which is a totally you know didn't even address the statute had to do with article three standing when when the when the statute talks more that one hundred percent and would point to the legislative history that's in the practice guy that talks about an emphasis on the practical situation it talks about defining  relationship is sufficiently close so as to justify the application of the doctrine of assad also but california positions talks about the kind of thing like where you were litigating as a proxy for someone else so given this contract that says that you've tied together with respect to this product dealing with respect to the intellectual property rights and the threat of adding this your product to so i'll start out with you know the practical situation right and there's absolutely nothing to do with that litigation it's a completely different contract and  the california physicians test case you reference the sufficiently close relationship all that but i also want to point out that the practice guide and in the context of that discussion also makes clear that  party's relationship in an unrelated endeavor is not sufficient under this this consideration not bound by the practiced i write well the board is bound by the practice guide but we're not we're doing  the board looked at both the relationship they did what they should have done under what you're pointing to as a requirement that the this is not this is not a single singular focus on control it's looking at the relationships of the war did what they're supposed to do they looked at the litigation noted that no the budget was never involved in actually no product was ever involved in that case and then looked at the green and in an unrelated endeavor and went through and looked at the content of that agreement and made an once you have and i mean i know you talk about a presumption which doesn't even make sense to me because there's nothing in the rules that even anywhere references a presumption there is no logic that would support the notion of an eviden presumption so isn't the notion that they supplied the contract and therefore made a non frivolous argument about the relationship between the parties wasn't that enough to say that it was your burden to come back with actual information beyond the contract itself that would that would refute the notion that you were acting either collectively or even in protection of each other's interest yeah well s points in response the contract is a neutral piece of evidence it's not like this is worlds evidence that they came forward with and has to be countered with some other piece of evidence what parties were in the border looking at a single document train interpret what that means so this isn't a relied on your attorney argument incenting what they rejected world's attorney argument and found our attorney argument more persuasive but i wouldn't characterize that as as my friend has in the briefing as being in you it an instance where there's evidence on one side nothing on the other that's just not true there's a document where the attorneys on both sides are arguing how that should be reasonably construed and the board listened to the arguments and found for say general principles of contract instruction both include things like the overall relationship between the parties including how the parties treated the and didn't consider it so they're doing a contract into the patient without even having the tools necessary to engage in a contract interface well i am only i understand the point i would say for this particular instance think it was necessary for the issues that were being advanced on one side and being disputed on the other and that is looking at particular looking at the nature of the contract that you had creating a product and somebody selling it or distributing it for them it was a development publication agreement and then the identified portions of the contract that were being pointed to with the assertion that this demonstrated the relevant provision that with all the talking about sure sounds like it could well cover the three ways to clear intellectual property rights show that your have covered by the intellectual property get permission from the owner or kill the intellectual property this is the third right this is one way of doing that on its face it sure sounds like some evidence to me any reasonable burden of production at that point it is your burden of persuasion under a p a five five six d that you're the one asking for relief to show that you've actually met the there are there is no missing real joined by evidence on some side as opposed to absolutely nothing based on the arguments that were being advanced by world that there are two provisions in their view demonstrated control so the board taking that argument into consideration with the the identified evidence antiquing into account bungees argument about why the interpretations were wrong if he's value it there's nothing wrong with the board saying that we've looked at this we've listened to your arguments and we don't find reid's argument but credible at the bottom of  not demonstrated that the agreement gives activision any opportunity to control the proceeding one that puts the burden on the patent or to it limits the whole consideration to the question and then they say in addition we know the argument because both parties were advancing nothing but attorney argument here meant as the other side the train argument said this should at least open the door to further inquiry and and basically your attorney argument just simply said don't bother we're going to promise you that they don't control us like that i wouldn't characterize it that way i would characterize it as there's a requirement that a petitioner make a representation and  board takes the position like they do in the patent office does in many other instances when the party makes a representation absent evidence to the contrary they're going to accept that representation so any evidence to the contrary or any non frivolous assertion that that representation is not accurate it's that it's fine for the board to say if nobody objects we're not going to go behind ourselves we're not going to put a are the sole and only real party in interest and in this context the two points again want the evidence that was advanced was rejected as as raising a sufficient level of of  concern that this was an issue and to you know the this idea of of putting this in context the idea of a party proving you know that another party doesn't can control almost up but the good news is that we control the times and we're going to try to help the issue if you have some comments on you know we spent most of the time with your friend talking about this issue of a stop all and certainly he lies heavily and talk  struction so out i'd like you to tell us whether you agree with his interpretation of that case or his application and if not why not i don't think your honor i would respectfully submit that my friends is misapprehended the the jurisdictional issue in the utah case the idea of and i think you touched on this your honor the ideas whether any agency can and has jurisdiction to even address the situation aspect that being referred to and it's not to be confused with a set of substantive point of challenge that the board can and does address which worlds disagrees with that's an issue for of something happened in the interim here i mean we decide this court decided what which at least arguably changed the landscape in terms of whether or not that question is one subject to review all i mean it could have been that at some point in the past anough about the merits issues of the three other i p r's but they couldn't independently have appealed the three fifteen b issue that would be story but it doesn't check out under these circumstances all six cases have the same timing they picked three and left three roughly the same time i'm sorry so your answer is yes that they were in this appeal they obviously were not  about some of them and yet in order to preserve one common issue in the was that they do care enough about their you're going to insist by way of collateral estop briefing and we see that in this case they've got one one unified set of briefing for three cases the only addition edition of the component that would that would be required is the listing of three other case there's it's minimal burden to add three other cases on the exact same issue and then in terms of the other side of the issue preclusion and i'm happy consequences is takes into e five six cases a set of three cases with no additional briefing it shouldn't make any significant difference to you i mean other side if there is not for this and not for the briefing  policies here it seems like it didn't care about those other patents and we're saying well you have to appeal that even though you don't care that you lost the pat downs but just you were serving in the future for excellent point your honor and the answer is it believes yass there are so so just focusing on this case for a moment how do if i've looked at the contract provision that is the key is the focus of talk about your party and interests it is about clearing legal rights to a product is it not possible that if you looked at one could say one might be able to say we don't know this person the chief's point that they didn't really have control activision didn't really have an opportunity to control ip ours and those because  i think that's a good question and it i think it illustrates some of the problems that result based not simply tagging cases you know you pose a hypothetical whether there's there could be some of the contract that would seem to undermine the entire argument that this was you know some sort of that this whole package falls within the product review situation right i mean that would undercut that whole argument that interpretation of the spelling out the interaction with activision as it relates to the i p p r any discussions that you had with activision relating that i p r if this was such a prestigious thing on your part and activision and nothing to do with it why was there declaration oh we fellows clear from from its face i mean you've got an unrelated litigation with a distributor and they're trying to tag bungy with stoppel based on an unrelated endeavor we read through the trial practice guide and this seems pretty on point that looking at the practical situation and the fact that there's an example given that in a relationship and in an unrelated endeavor there's not linked to   i do want to make a clarification here for a matinee and that is there was no challenge here to the board's decision to deny discovery this is the issue that was raised on appeal the more that analysis well but that's an issue for my point is an issue for this court is whether or not whether the board abused its discretion and some of these some of the questions we've been discussing get to that point should the board have ever given more discovery should we've looked into this more that's not the issue and if you leave a difference between allowing them discovery and probing you signed by a client or a person having knowledge for example it's not like a ninety six complaint where you have to have a sort of occasional discovery response but wrong people file i'm not sure the answer to this but even in our cases where you file a certificate of interest it's fine by the attorney  go sent it back to the patent office and they decide not to open up the record again which which is you know to bungy we pushed back repeatedly through the discovery motion they they decided not to submit a declaration establishing the real parties in interest with their reply which they which effect an error of law and the patent office is decision to put the burden of proof on the patent owner in effectively disproving that activision was a real party and just rather than the burden of proof on  actually be a great case for this court to take a firm stance on this point because it's saying don't rely on the agreement don't rely on a question of lot bungy if you want to prove that activision isn't a real part of interest for that information and let the person be cross examined and if in the record shows that in fact activision had no involvement whatsoever then you have the facts and then the deference applies and so this is that is an opportunity in fact in this court to to make a statement tell petitioners how to deal with this is that they don't have this problem  that's going to hear in terms of whether the destiny litigation is in fact separate from what's going on here you can't find that from the agreement you simply cannot look at this agreement and say that fifteen point three of the number of occasion provisions are very consistent seventy fifteen j which say that activision has an oversight like a helicopter parent they can watch with bungees doing if any point bungees doing the wrong thing or taking you know the fire arts which hasn't been good enough to claim charts aren't good enough for your analysis on this point isn't good enough they have the right to tell the bungee do it again get it right you want to see my time is up