yeah next case before the court applications and internet time verses are v x corporation one seven one six nine have the three of you in this panel because you know judge ran up to the opinion judge from out you concurrence ok and it's still the court's opinion of course but you know we certainly have three experts on this issue today and i think probably better get to your argument you don't have that much time thank you ron so i think it's pretty clear that that this is an issue that that is both important and one where the patent office has been handling it improperly and consistently improperly when you look at the record of decisions that the patent office gave on this issue and we addressed that in our apply you know one hundred seventy eight decisions that were real party in interest probably named or not you know that the board's opinions were consistently that that the only opportunity to challenge a real party in interest or pretty nobody even challenged privy at that point because the issue w only been developed as something where in the petition probably named real party in interest that's what the rules did you name all of the real parties in interest there's nothing in the rules that require a petition or there is no actual is there no i believe there is a rule that requires that there's a juror that talks about what needs to be disclosed but there's no rule that the pines what any of these statutory terms mean is there correct correct ok so you spend a lot of your time so of course there is not and legal authority for the proposition yet that's what we're that's we're trying to ferret out what's the legal issue so the legal issue is what how much of a relationship does there have to be for a unnamed party to actually be a real party in interest right chris i think with the question is what did congress contemplate in the statute right exactly thank you judge malley i think the congressional records pretty clear that congress did not intend parties to have a second bite at the apple sales force clearly had a first bite at the apple they filed their their petitions for c b s the petitions for c b and word were denied and within the only had a pretty theory i think it has it's a great question i think that if it's the petitioner is a membership organization and have its members has an interest in the outcome of direct interest opportunity to make you law your honor i don't think that there is but you're not telling me what law to make what law do you want me to make what definition of proxy are privy should i apply in the statute and where should i draw problem so i think that when contractual relationship between the petitioner and the i named party that suggests that that there is some measure of of you know that the petitioner is acting on behalf of the unnamed party in the litigation exactly in the litigation even outside of the loop the litigation my own kind of litigation what does that have to do with them because there are certainly instances where an unnamed party might might have and have a direct interest in the to itself driving cars and loses its whim of it tries to institute another are they barred because hoover is really a real party in interest because they would also benefit from having that same pattern invalidated even though there is no contractual relationship they're actually opposing companies trying to develop that car i mean it can't just be that you have an interest in getting the patent invalidated because lots of unconnected parties that are proxies are pretty loose would have an interest in getting a patent invalidated after they'd already lost absolutely and that's why i think that contractual relationship is something that that's pretty in a contractual relationship to do what we're the petitioner is acting on behalf of the on a party and how do we determine well it could be that that like i said there is a corporate relationship affiliated or a then how is that relevant i mean if you had preserved an objection and said the board gave us some discovery we found it into efficient we asked for more it was necessary and it was a piece of discretion that i that we could consider but how can you now complain about insufficient discovery when you haven't argued that the board air you know your honor i think that there is some there's there's there's a limited point of futility in some cases so just to correct it i mean i know it's a high standard but if the board's not allowing discovery when it should that's something we can say but we can't reach that issue if you haven't preserved it for appeal i agree now we do believe that there  enough evidence in the record that you can decide that there is a real party in interest or it is here so while we believe that we should have done more than the poor when you were discussing the legal standard you talked about affiliated corporations is there any evidence on the record that sales force and our p x are affiliated corporations you know there's some evidence but i don't think that's the strongest evidence i think the overlap of board members has a some happened there was because she asians about more funding it does you know whether our p x gets funding from anyone other than those members that it purports to represent a big beef and before you answer that i do want to get something clear some of this information is more confidential and we need to make sure that we can ask you the right question and because this is an open court with a lot of information the stop of talking about now that items that were probably the recall or are you think it is confidential i think that those two items are pretty compelling without me identifying with those are i think that between us we can all say that those are some pretty compelling facts and that if you just look at those facts alone along with the public statements made by our p x about you know acting on behalf of  members and representing you know acting as an extension of the in house legal department helping its members to control their patent liabilities it starts to make a pretty compelling case here that that  not just you know some lone vigil and but they were actually acting on behalf of sales force or they acting at the direction of sales force you know the day and age of sales force we believe so your honor and what evidence is there to show that you know what there is no evidence because well then you can't argue it i know that you wanted more discovery you didn't get it you didn't appeal it you can't surmise what happened you have to rely based on the evidence and so i think you just conceded and i didn't see any evidence that there's anything that would establish a specific agency relationship so so that's a good question so whether whether there are what is the scope of the agency here i think it's pretty clear that by contract an organization such as archy x could be acting as the agent the agent of others and the evidence of record shows that because these people pay in money to r p x and then r p x makes a decision and let's assume it's an independent independent decision to go file and i p r is that enough for an agency relationship in your view may tangentially or directly benefit them but there's no connection is that enough for a real party in interest pretty determination i think your honor last otherwise what we have is essentially the let me ask you this suppose you have a non profit entity that acts at least its mission statement is purported to be for the public good it gets donations from a lot of sources including the industry but it makes independent determinations about which patents to ip are not or companies that will benefit from those ip ours real parties in interest to that public interest organization yes i think so you think congress had that broad meaning of the rich isn't that just virtual representation isn't that the point well isn't that what the supreme court rejected in taylor vs sturgeon's that virtual representation was not good enough to find a so we're going to stick with the issue that was actually addressed in argument so let me begin where we left off i have a real problem with the notion that that the p t o decided in its guy the tailor is the the montra that it should follow putting aside whether the p t o even enter putting its own guide in this case properly because i think there's a good argument that they're not but taylor is in a totally different context congress when it discussed r p i cited california positions it did not cite taylor so why should are those cases that that congress actually pointed to the cases that we should be looking at to determine what the scope of r p i here i think it was clear from a rational country that what congress intended generally once the common law would apply and would control one of them not one taylor was never cited so why are we a relationship between the party to be stopped and the unsuccessful party in a prior litigation which is sufficiently close so as to justify application of the doctrine of collateral estoppel and cites california positions so the way i interpreted th that you have two doctrines and they're basically flowing in different directions real party in interest refers to what does the i mean party sales force was the i p r central file at their behalf and then there's a list of factors that go into that funding s sufficiently close activity in the litigation course architects wasn't involved on litigation such that a determined it was wise discussing matters with sales force during the course of the litigation discovery but they also made a choice not even to cross examine the witness who put in that evidence is declaration itself which explains the reasons why architects filed these for its own benefit and not fifth not for sales forces benefit it constitutes substantial i mean here is my problem with this i mean look you can all arrange your business in a very clever way to suggest that you're not doing this on the behalf of certain specific numbers and the evidence may just not be there but isn't the understanding that in addition to the cross licensing you get by paying dues or whatever you call them i assume you call them licensing fees but also there are honor that there was an issue raised a love that was was not are you don't feel about the the rate of payment for this particular client and that was set can't but how does the does the funding work in terms of general licensing fees and support or is there any sense that this is divided up into a payment for cross licensing and a payment friday are services i phrase real party in interest and privy so obviously we need to have an understanding of what those terms mean i know k and the guide is not a rule i mean that the there were comments asking the p t o to establish a regulation or r defining what those terms mean and the p t o did not do so instead of just created a guide right i'm not familiar with that level of detail of the p t o lawmaking so the p t o would not be entitled to to deference with respect to the guide the guide at best until afterwards when they had to be notified because of the incident discovery activity so there was there was absolutely no no involvement whatsoever and with respect to the privy language that todays two things one they never raised it below so there was absolutely nothing to the core that they are your proxy correct they use the word proxy that's right not pretty but the question was whether or not you satisfied three fifteen b i mean that's they don't have to say what every guide talks about how much broader the concept of privy is and there's lots of language in the guide that was never even considered in this particular case is that right the board in this case did not to my recollection undertake a detailed review of the language in the guide the board that the p tab has said in numerous decisions discussed you know its own view of real party in interest and privy for example there's a case litigation that they would be filed earlier stopped from right and that and we know that that's that requiring that as the standard is not right it's not correct right i mean it's even under taylor that wouldn't be correct to tell or less out so all you're doing is telling us that the p tab over and over is just picking and issue that can't be satisfied and using that as their test tell  a number of factors which include you know factors that go to the whole issue of control direction funding cetera none of that is present here so i understand that this court has to grapple with what the proper test is since so far i'm not suggesting that you should take a cavalier approach or on all on saying yes that is that the extensive discovery that occurred didn't turn up any factors that have been listed in any of the any of the precedents that have been applied at least by the  well i think you might need to do that if there were any indications that any of the factors that would be relevant existed here but it's clear it's not as you know that they failed to address the specifically in the in the final written  shitter the final bit in the session addresses all the potential relevant factors funding control direction but no it doesn't even discuss a lot of the factors that are listed in the act i think those are the primary factors that the guy addresses compassed then then real party in interest and company seem parties that do not necessarily need to be identified in the petition as a real party in interest i think that's really the heart of the issue here and taylor you know even the trial practice kind recognizes the tailor provides a framework but it doesn't establish a definitive taxonomy of course that doesn't solve the problem for you your honour's and what the definitive taxonomy should be here and i know that's what judge shoes are struggling with of of its member of its of its how about agency relationship i think it's no different than that a law firm acting on the have a client you are aware of law firms that independently undertake to do things without the client specific direction so i would like to look at that law firm you know your honor i think that is the heart of isn't that the whole point the client says go out and accomplish x go for me the law from a exercise some discretion and how it does it but it certainly doesn't go willy nilly file a lawsuit or something like that without the client express permission and i mean it sounds like that would violate oh so you know in the appendix of pages twenty eight to thirty we've got some excerpts from our taxes on literature that talks about what their business is and it's and how they serve their their clients how they serve their members and thirty one ok it says our strategy is right in the middle your honor our mission is to transform the patent market by establishing our p x as the essential intermediary between patton a nurse and operating companies so when when hires me to do something i go and i do it and sometimes there are things that that i have to go back to my client and ask for permission for but there's a lot of discretion here including if you look at the bottom of that page thirty one it says including the