For what it is worth, here is my opinions.
PLEASE read all, importantly I have highlighted in red specific issues.
Its alot, excuse typos, etc... enjoy i hope it is complete enough.
PRIVY V CONTROL: The CAFC Argued in court that PRIVY, does not have to be the BAR, the level per WIFI One etc has been changed. showing how a relationship between the parties to be shown to exist.
PRIVY NOW WITH CLOSED CASE: Bungie argues that Even though the letter was only sent to ATVI and, it ended up in Bungies hands, and the fact bungie challenged ONLY the same 5 patents that ATVI had already in litigation in Boston and that bungie had a board member of ATVI at any board meeting where litigation would have been discussed somehow does not prove a relationship, a legal conduit relationship (as I have said for two years now) did exist is beyond me.
Lets put it this way let’s say you’re an Activision share holder, you now find out that ATVI had a board member sit on the board of Bungie, BUT – BUT that board member did … nothing, he at no time informed ATVI about what bungie was up too, he never brought information to Bungie, he never discussed the BILLIONS of dollars at stake due to pending PTAB, CAFC or the decision to get Destiny back or anything else… question what did the board member due? Where are the minutes. Did this board member X collect a salary? Did he sell ATVI short at $88.00 knowing about the spin off of Destiny ahead of time? Anyway, again what did the board member know and when.
PER THE CAFC: Bungie argued the same DevPub Agreement between Bungie and Activision, which related to development of Destiny; (2) the November 2014 letter indicating Worlds’s intent to add Bungie’s Destiny products to the Activision litigation; and (3) the fact that the five patents asserted in the Activision litigation were the same five patents Bungie challenged in its IPR petitions.
OBSERVER V BOARD MEMBER: The Observer as quoted by Bungie must be a Scribner’s error here.
It was clearly defined by the DEVPUB agreement that bungie would like to forget about that ATVI agreed to work WITH bungie only under certain conditions, one being that a decided upon individual would be added to Bungies board. Whether the BOARD MEMBER (hereafter known as board member X or BM-X ) is a voting member or a non voting board member that ONLY asks questions of other board members of bungie that activision needs answered or questions of bungie board members that bungie requires answers too. I would find it highly suspect if anyone would believe that if litigation was being discussed that the board would not know it including board member X, OR if board member X brought the letter to bungie from ATVI, The board member X was a conduit and SAT ON THE BOARD.
BUNGIE BRIEF: The Board correctly rejected this argument already. Merely observing
board meetings does not translate into controlling Bungie’s IPRs. See, e.g., Google LLC v. Seven Networks, LLC, IPR2018-01052, Paper 28, at 12-19 (finding voting board member, ability to authorize and approve petitioner’s budgets, and other relationship ties insufficient to establish RPI status when a subsidiary-petitioner “operate[s] independently and separately” from its parent” The issue here raised by bungie is so erroneous its not funny, as they actually argue our point for us.
While yes a subsidiary of tire buyers for HERTZ and a lug nut company X are subs of two companies in which IPRs are raised would be tough to prove they legally had privy or a base legal relationship.
Here bungie a privately held company has no subsidiary and dealt DIRECTLY with Activision’s LEGAL department one on one
IPR PER THE CAFC – PLEASE READ, YOU’RE AN INVESTOR, ITS IMPORTANT TO KNOW.
Atlanta Gas Light explained that this initial acceptance “acts as a rebuttable presumption” that benefits the IPR petitioner. Id. Quoting Federal Rule of Evidence 301, the Board stated that “[t]he party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally.” Id. at 8 (quoting Fed. R. Evid. 301 (emphasis in Board’s opinion)). From this, the Board in Atlanta Gas Light explained that, where “a patent owner provides sufficient rebuttal evidence that reasonably brings into question the accuracy of a petitioner’s identification of the real parties in interest, the burden remains with the petitioner to establish that it has complied with the statutory requirement to identify all the real parties in interest.”
PER THE CAFC:
After rejecting each of Worlds’s other arguments regarding the DevPub Agreement, the Board concluded that “Patent Owner has not demonstrated that the Agreement gives Activision any opportunity to control this proceeding.” J.A. 509, 3877, 5094. In so doing, the Board also relied on statements in Bungie’s Opposition to Worlds’s Motion for Discovery, including that “Bungie is solely responsible for the cost and control of the IPRs against [Worlds’s] patents,” J.A. 409–10, and that “Activision’s payment of development advances to Bungie funded the development of the Destiny videogame, not these IPRs,”
The parties maintain their respective interpretations of this provision on appeal. WORLDS INC. v. BUNGIE, INC. 15 J.A. 416. See J.A. 510, 3877, 5094–95 (relying on these statements). In Bungie’s briefing, those statements were made without citations to any evidence. See J.A. 409–10, 416. Nonetheless, from these statements, the Board concluded that “Petitioner has expressly denied any control or funding of this proceeding by Activision,” and “[o]n this record, we accept Petitioner’s express representations that Activision is not controlling or funding this proceeding.” J.A. 509–10, 3877, 5094–95. The Board ultimately concluded its real-party-in-interest analysis by stating that “Patent Owner has not demonstrated that Activision is an unnamed real party in interest in this proceeding. Accordingly, Patent Owner has not established that the Petition violates 35 U.S.C. § 312(a)(2) or that institution of review is barred under 35 U.S.C. § 315(b).” J.A. 511, 3878, 5095. The Board reaffirmed this analysis in its final written decisions. J.A. 106–07, 194–95, 258–59. Under the framework we have outlined above, the Board was entitled to rely, at least initially, on Bungie’s list of all real parties in interest, which raised no time-bar issues under the facts presented. Here, however, Worlds presented evidence sufficient to put Bungie’s identification of itself as the sole real party in interest into dispute. Thus, in this circumstance, the Board could no longer merely rely upon Bungie’s initial identification of the real parties in interest. Instead, the Board was required to make any factual determinations necessary to evaluate whether Bungie had satisfied its burden to demonstrate that its petition was not time-barred based on the complaints served upon Activision, the alleged real party in interest. This marks the point in the analysis at which the burden of persuasion becomes essential. There is here a complete absence of any statement as to which party should bear the burden of persuasion. At the same time, the Board rejected the patent owner’s arguments because 16 WORLDS INC. v. BUNGIE, INC. the Board was “unpersuaded that there is sufficient evidence that Activision is an unnamed real party in interest for the reasons given in the Institution Decision.” J.A. 107, 195, 259. This implies that the Board assumed the burden of persuasion rests with the patent owner. Moreover, the Board’s potential reliance on the rebuttable presumption from Atlanta Gas Light may have effectively skewed the burden of persuasion despite Atlanta Gas Light’s statement that it was not approving such a shift. Under these circumstances, we cannot discern whether the Board placed the burden on Worlds, the patent owner, to persuade the Board that Bungie failed to list a real party in interest that would render the petitions timebarred under § 315(b). As discussed above, this would have been improper. As an aside, we have some concern that the Board may have relied on attorney argument as evidence that Activision was not controlling or funding these[color=red][/color] IPRs. See J.A. 510, 3877, 5095 (citing Bungie’s briefing and stating that “[o]n this record, we accept Petitioner’s express representations that Activision is not controlling or funding this proceeding”); see also Icon Health & Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1043 (Fed. Cir. 2017) (“Attorney argument is not evidence.”).
This is particularly concerning given that the Board’s apparent reliance on such statements seemed to outweigh the actual evidence presented by Worlds. Instead of citing evidence to support this factual conclusion, the Board merely cited attorney argument from Bungie’s briefing—attorney argument that itself failed to cite evidence, such as affidavits or declarations. See J.A. 510, 3877, 5095 (Institution Decisions); J.A. 409–10, 416 (Bungie’s briefing). In light of these concerns, we find it appropriate to remand this case to the Board for further consideration of the real-party-in-interest issue.
In doing so, we do not speak to how the evidence should be weighed, and we do not prejudge what conclusion the Board, applying a WORLDS INC. v. BUNGIE, INC. 17 proper analysis, may reach as to whether Activision is a real party in interest in these proceedings. We note, however, that we have issued opinions since the Board issued its final written decisions that clarify the meaning of the term “real party in interest” in the context of § 315(b). See Applications in Internet Time, LLC v. RPX Corp., 897 F.3d 1336, 1351 (Fed. Cir. 2018) (explaining that determining whether a party is a real party in interest “demands a flexible approach that takes into account both equitable and practical considerations, with an eye toward determining whether the non-party is a clear beneficiary that has a preexisting, established relationship with the petitioner”); Wi-Fi One, LLC v. Broadcom Corp., 887 F.3d 1329, 1336 (Fed. Cir. 2018) (noting that the Board, in rendering § 315(b) determinations, “seeks to determine whether some party other than the petitioner is the ‘party or parties at whose behest the petition has been filed’” [color=red][/color](citing Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,759 (Aug. 14, 2012))). We remand with instructions for the Board to weigh the evidence in a manner that places the ultimate burden of persuasion on Bungie, the IPR petitioner, and to do so in a manner consistent with our recent precedent
While Bungie claims that the CAFC found no evidence and provides nothing for the PTAB to work with, the actual fact is that the case was remanded in full, remanded with INSTRUCTIONS, remanded with the weight of the CFAC record AND the new FWD’s since, which as instructed to the PTAB must now reconsider the weight of the evidence (the DEV/PUB) as well.
The CE issue here is interesting:
Bungie is saying listen. this court (PTAB) ruled with FWB basically saying ok we rule here that the television is on channel 5, with that the PTAB writes in its decision that the Television was glued onto channel 5 and further more all the other channels were deleted and it is therefor decided that we the PTAB find the TV was in fact on channel 5.
That would be a FWD Final Written Decision.
WDDD is saying well first if the IPR is found to be incorrect and finds ATVI was an RPI then CE doesn’t even enter the picture.
If CE is somehow first up, per the CAFC, then the PTAB must decide is this the hill they wish to die on, whereas they know that to rule that CE applies, flies in the face of the remand with instructions of a higher court with NEW FWD’s in other new cases.
As well the CAFC says to look at issue preclusion/collateral estoppel, see below:
For the foregoing reasons, the Board’s final written decisions in these three consolidated appeals are vacated. On remand, the Board should first address whether Worlds is estopped from arguing the real-party-in-interest issue. The Board should thoroughly consider the posture of the related proceedings, as well as any relevant exceptions to collateral estoppel. If the Board determines that collateral estoppel does not apply, the Board should then reevaluate the merits of the real-party-in-interest issue. And, in light of this court’s recent guidance on the substantive real-party-in-interest inquiry, the Board, in its discretion, should consider whether to allow for additional discovery on this issue.
From Q
Adding evidence after the fact.
If the Board finds it necessary to revisit its RPI determination, the record strongly supports its earlier conclusion that Activision is not an RPI (a fact Worlds knows to be true based at least on its dealings with Bungie) How did bungie get away with adding into the record here.
I would assume that adding this into the record would be added to the a CAFC appeal.
From Q
CAFC ASKED WHY NOT ADD INTO THE RECORD RPI INFO?
Adding to its speculation, Worlds repeatedly accuses Bungie (at 15, 22, 28- 29) of “refusing” to produce evidence and impeding the Board’s ability to prove Bungie’s relationship with Activision.
This irresponsible rhetoric is simply false. Bungie never refused to provide evidence.
From Q
The chief judge asked bungie, if this was raised which it was at the PTAB, why didn't they BUNGIE, provide evidence if everything is on the up n up.
From Q
IPR PRECLUSION – ONCE VACATED BY A HIGHER COURT ANYTHING CAN BE CHALLENGED
Federal Circuit and the Board have repeatedly held final IPR decisions are preclusive. but only that there is no material difference here.
Cases need not be identical for issues to be materially identical for issue preclusion
The Board is best positioned to clarify that it did not impose a burden of proof on Worlds and that its RPI determinations did not turn on one.
From Q
The PTAB must do the above with the guidance of new decision’s by the CAFC such as WIFI One
From Q
Bungie claiming that the CFAC settled nothing
Worlds’s speculative control arguments are unfounded.
Worlds’s RPI arguments until now were premised on its erroneous
construction of the DevPub agreement. The Federal Circuit found no fault with the Board’s previous findings that Worlds misconstrued the DevPub agreement.
FROM Q
In any court in the US the DEVPUB would be considered evidence of a relationship. The PTAB has to show that once again, the DEVPUB is not sufficient legally to prove a legal relationship with the CAFC guidance is not a relationship see WIFI one, and others.
From Q
ATVI screams billions at stake but never calls their designers?
BUNGIE NOW OPENS A DOOR OF BM
Worlds argues (at 22) that the DevPub agreement makes Activision an RPI
in Bungie’s IPRs because of the ability to have a non-voting observer attend board meetings. The Board correctly rejected this argument already. Merely observing board meetings does not translate into controlling Bungie’s IPRs. See, e.g., Google LLC v. Seven Networks, LLC, IPR2018-01052, Paper 28, at 12-19 (finding voting board member, ability to authorize and approve petitioner’s budgets, and other relationship ties insufficient to establish RPI status when a subsidiary-petitioner
“operate[s] independently and separately” from its parent). Here, Bungie does not even have a parent-subsidiary relationship with Activision, much less one where Bungie’s IPR decisions are subject to Activision’s control.
From Q
Again I ask, what if anything did the Board member do? Not talk to bungie, was never asked any questions, never listened to anything said, never reviewed anything or was he never told anything I just don’t know how this is not a more weighted issue, but on remand now it will be addressed.
PER THE CAFC:
The Board issued final written decisions in the three IPRs on appeal on November 10, 2016; November 28, 2016; and December 6, 2016. Meanwhile, the Board issued final written decisions in the three unappealed 18 WORLDS INC. v. BUNGIE, INC. gued, as it does here, that Bungie should have named Activision as a real party in interest. The Board disagreed. Worlds did not appeal the Board’s final written decisions in those IPRs, and the time for appeal has now expired. The general rule for issue preclusion (also called collateral estoppel) is “[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” B & B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 1303 (2015) (quoting Restatement (Second) of Judgments § 27 (1982)). This general rule is “subject to certain well-known exceptions.” Id. (citing Restatement (Second) of Judgments § 28 (1982) as listing exceptions).
Bungie devotes just two pages of its briefing to arguing that the basic requirements of issue preclusion are satisfied in this case. Appellee’s Br. 62–63. In similarly cursory fashion, Worlds’s Reply Brief compiles a handful of conclusory assertions in an attempt to avoid issue preclusion. Reply Br. 30–32. And because of the timing of the six IPRs, the Board did not consider issue preclusion. In this case, such a limited record is insufficient for this court to decide, for the first time on appeal, whether issue preclusion should apply to this unusual set of facts. The record before us is scant on details regarding the issues raised in the three unappealed IPRs. Based on the limited record before us, we cannot say that the “issue” is the same between the now-final IPRs and the IPRs cur- IPRs on November 28, 2016 (for two proceedings) and November 30, 2016. WORLDS INC. v. BUNGIE, INC. 19 rently on appeal. Bungie, of course, views the “issue” as the ultimate determination of whether Activision is a real party in interest. See Appellant’s Br. 63. But in our view, the determination of whether a party is a real party in interest may differ from one IPR to the next, even among a set of seemingly related IPRs. Without a more comprehensive understanding of the issues raised in each case, we decline to apply collateral estoppel. Instead, given that we are already remanding this case with regard to the merits of the real-party-in-interest analysis, we find it appropriate to have the Board analyze in the first instance whether issue preclusion should apply under these particular circumstances. In doing so, the Board should develop a more complete record that explains the differences, if any, between the issues raised in present IPRs and the unappealed IPRs. The Board should also consider any relevant exceptions to issue preclusion raised by the parties and explain why such exceptions do or do not apply to these facts. See Restatement (Second) of Judgments § 28 (1982); see also In re Cygnus Telecomms. Tech., LLC, Patent Litig., 536 F.3d 1343, 1349–50 (Fed. Cir. 2008) (regarding issue preclusion where a party did not appeal all cases consolidated in a multi-district litigation proceeding). B Because of our conclusions with respect to the realparty-in-interest issue, we need not address the merits of the parties’ invalidity arguments at this time We therefore vacate the Board’s merits decisions in their entirety, without speaking to the merits of the Board’s analysis. On remand, if the Board determines that the IPRs are not time-barred, the Board may use its prior merits analysis in new final written decisions, and a future panel of the court will have occasion to review the merits of the Board’s analysis at that time, should the parties choose to appeal. 20 WORLDS INC. v. BUNGIE, INC. III For the foregoing reasons, the Board’s final written decisions in these three consolidated appeals are vacated. On remand, the Board should first address whether Worlds is estopped from arguing the real-party-in-interest issue. The Board should thoroughly consider the posture of the related proceedings, as well as any relevant exceptions to collateral estoppel. If the Board determines that collateral estoppel does not apply, the Board should then reevaluate the merits of the real-party-in-interest issue. And, in light of this court’s recent guidance on the substantive real-party-in-interest inquiry, the Board, in its discretion, should consider whether to allow for additional discovery on this issue.
OK, So here it is I think, I hope as some would say, my guesses..
As thorough as Bungies briefing is, I believe that the CFAC had previously addressed all of it.
I believe the PTAB decision may take a couple weeks more than I thought, if the decision comes in under 75 days then they have already been writing it up as they have gone by the CAFC guidance and the record of the PTAB prior along with Solicitors guidance and are waiting to address bungies briefing.
I believe that the Board member portion, the unsung hero I truly believe will be the downfall of Bungie.
Bungie has shown a light a very bright light on a LIE…. By calling the BOARD MEMBER an observer is an outright LIE. An observer could be a reporter hearing that the board in this quarter has decided to give all 2019 first quarter profits to poor children in Africa. Whereas a LEGALLY required Board Member differs as where it can ask questions or provide information as well as record or bring information back to ATVI as directed.
I think that the PTAB can get out from under all this by finding of fact that a board member was a conduit AS PER the DEVPUB.
The CFAC OUTRIGHT tells the PTAB go review everything but you need to review our OTHER RECENT rulings before you make a boo boo here.
The CAFC says Because of our conclusions with respect to the realparty-in-interest issue, we need not address the merits of the parties’ invalidity arguments at this time.
The CFAC is all but saying we will address this if need be, but first we will let you try to get it right, if not we will revisit it when Worlds or anyone brings it up.
Anyway
JMHO
Q
PS I’m tired, so be kind when ripping apart please
Best to all
Q
