Trials@uspto.gov
`571.272.7822
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`
`
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` Paper 142
`Entered: December 4, 2020
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`RPX CORPORATION,
`Petitioner,
`
`v.
`
`APPLICATIONS IN INTERNET TIME, LLC,
`Patent Owner.
`____________
`
`IPR2015-01750 (Patent 8,484,111 B2)
`IPR2015-01751 (Patent 7,356,482 B2)
`IPR2015-01752 (Patent 7,356,482 B2)
`____________
`
`
`
`
`Before SCOTT R. BOALICK, Chief Administrative Patent Judge, JACQUELINE
`WRIGHT BONILLA, Deputy Chief Administrative Patent Judge, and SCOTT C.
`WEIDENFELLER, Vice Chief Administrative Patent Judge.
`
`BOALICK, Chief Administrative Patent Judge.
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71(d)1
`
`
`
`
`
`1 This decision pertains to Cases IPR2015-01750, IPR2015-01751, and IPR2015-
`01752, as Petitioner’s Requests for Rehearing are substantively the same in each
`case. Citations are to the paper numbers in Case IPR2015-01750.
`
`

`

`IPR2015-01750 (Patent 8,484,111 B2)
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`
`I.
`
`INTRODUCTION
`
`On October 2, 2020, we issued a Final Decision on Remand after the Board
`
`received a decision by the U.S. Court of Appeals for the Federal Circuit in
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`Applications in Internet Time, LLC v. RPX Corp., 897 F.3d 1336 (Fed. Cir. 2018)
`
`(“AIT”) (Paper 110), remanding the case back to the Board. Paper 125, public
`
`Paper 128 (“Dec.” or “Decision”). In its decision, the Federal Circuit concluded
`
`that the Board previously “applied an unduly restrictive test for determining
`
`whether a person or entity is a ‘real party in interest’ within the meaning of
`
`§ 315(b) and failed to consider the entirety of the evidentiary record in assessing
`
`whether § 315(b) barred institution of these IPRs.” AIT, 897 F.3d. at 1339. Prior
`
`to issuing the Final Decision on Remand, a Panel Change Order was issued. Paper
`
`124 (“Order”). As noted in the Order, these IPRs raised important issues for the
`
`Board with applicability to future cases, and presented unique scheduling and
`
`timing issues in view of Thryv, Inc. v. Click-To-Call Techs., LP, 140 S. Ct. 1367,
`
`1370 (2020) and related case law, warranting a panel change to include the most
`
`senior administrative patent judges available. Order 2–3.
`
`In the Final Decision on Remand, we determined that Salesforce was a real
`
`party in interest (an “RPI”) in these proceedings, and the Petitions, therefore, were
`
`time-barred under 35 U.S.C. § 315(b). Dec. 35, 40. Based on that determination,
`
`we terminated the previously instituted inter partes reviews. Id. at 40. On October
`
`9, 2020, RPX Corporation (“Petitioner”) filed a Request for Rehearing of the
`
`Board’s Final Decision on Remand. Paper 134 (“Req. Reh’g.”). Pursuant to our
`
`authorization, Patent Owner filed a Response (Paper 135, “PO Resp.”), and
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`Petitioner filed a Reply (Paper 136, “Pet. Reply”). For the reasons discussed
`
`below, we deny Petitioner’s Request for Rehearing.
`
`
`
`2
`
`

`

`IPR2015-01750 (Patent 8,484,111 B2)
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`
`II. STANDARD OF REVIEW
`
`As it relates to a request for rehearing of a Board decision, in pertinent part,
`
`37 C.F.R. § 42.71(d) states:
`
`The burden of showing a decision should be modified lies with the party
`challenging the decision. The request must specifically identify all
`matters the party believes the Board misapprehended or overlooked,
`and the place where each matter was previously addressed in a motion,
`an opposition, or a reply.
`
`Thus, a request for rehearing is not an opportunity to present new arguments or
`
`evidence or merely to disagree with the panel’s assessment of the arguments or
`
`weighing of the evidence.
`
`III. ANALYSIS
`
`In the Final Decision on Remand, we determined that Petitioner had not
`
`shown, by a preponderance of the evidence, that Salesforce was not an RPI in these
`
`proceedings. Dec. 1–2, 6–7, 30–35, 40. As noted above, in light of this
`
`determination, we terminated the previously instituted inter partes reviews, and
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`denied inter partes reviews under 35 U.S.C. § 315(b). Id. at 35, 40.
`
`In its Request for Rehearing, Petitioner sets forth two principal arguments.
`
`First, Petitioner asserts that the panel change following the remand from the
`
`Federal Circuit deprived Petitioner of its due process rights and violated the
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`Administrative Procedure Act (APA). Req. Reh’g. 1–3; see also Pet. Reply 1–9.
`
`Second, Petitioner asserts that the Board “overlooked and misapprehended key
`
`evidence, resulting in factual findings that are simply wrong on critical issues.” Id.
`
`at 3–10. We have reviewed Petitioner’s Request for Rehearing, Patent Owner’s
`
`Response, and Petitioner’s Reply, and carefully considered all arguments presented
`
`in view of the legal standards and the evidence of record. For the following
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`reasons, we are not persuaded by Petitioner’s arguments.
`
`
`
`3
`
`

`

`IPR2015-01750 (Patent 8,484,111 B2)
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`
`1. Due Process and the APA
`
`a. Due Process
`
`Petitioner argues that it was deprived of due process because “[d]ue process
`
`required that these cases be decided by the panel that conducted a pre-hearing
`
`conference to explain what issues and evidence those judges believed were most
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`critical to address (Ex. 1099), and participated at oral hearing.” Req. Reh’g. 1.
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`Petitioner asserts that the unfairness of the panel change is highlighted by an
`
`alleged different view of the same evidence taken by the original and current panel.
`
`Id. at 2–3. Moreover, Petitioner asserts that the panel change is “unprecedented
`
`and improper,” and was done without any authority authorizing such a change.
`
`Pet. Reply 3. In light of these alleged violations, Petitioner requests that either the
`
`Decision be vacated and remanded to the original panel, or that the Decision be
`
`vacated so the current panel can hold an oral hearing. Req. Reh’g. 3.
`
`Patent Owner disagrees and contends that RPX has failed to establish a
`
`protected liberty or property interest at stake in these cases sufficient to afford
`
`them due process protections. To the extent RPX can claim due process rights,
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`Patent Owner argues, the Board’s procedures have complied with the requirements
`
`of procedural due process. PO Resp. 2–7.
`
`As an initial matter, we note there is no question that IPR petitioners are
`
`entitled to due process and the protections afforded by the Administrative
`
`Procedure Act. Pet. Reply 1 (citing SAS Inst., Inc. v. ComplementSoft, LLC, 825
`
`F.3d 1341, 1351 (Fed. Cir. 2016)). We agree with Patent Owner, however, that all
`
`requirements of procedural due process have been met here. “The indispensable
`
`ingredients of due process are notice and an opportunity to be heard by a
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`disinterested decision-maker.” Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064, 1080
`
`
`
`4
`
`

`

`IPR2015-01750 (Patent 8,484,111 B2)
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`(Fed. Cir. 2015) (quoting Abbott Labs. v. Cordis Corp., 710 F.3d 1318, 1328 (Fed.
`
`Cir. 2013)).
`
`In this case, Petitioner had ample opportunity to brief the issue of RPI. See
`
`Paper 28, Paper 29 (redacted version); Paper 38, Paper 37 (redacted version);
`
`Paper 98, Paper 95 (redacted version); Paper 100, Paper 104 (redacted version);
`
`Paper 101, Paper 102 (redacted version). Petitioner also had an opportunity to
`
`argue the issue of RPI in two oral hearings. See Paper 77, Paper 112, Paper 123
`
`(redacted version). Moreover, in its Request for Rehearing, Petitioner had a
`
`chance to identify any matters it believes this panel misapprehended or overlooked
`
`in its Final Decision on Remand. Petitioner further had an opportunity to file a
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`Reply to Patent Owner’s Response to its Request. Thus, both before and after this
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`panel issued its Final Decision on Remand, Petitioner had notice and an
`
`opportunity to be heard on issues relevant to these cases on remand from the
`
`Federal Circuit.
`
`Finally, although a change in panel after remand from the Federal Circuit is
`
`not common, this panel, like the original panel, decided the merits of each case
`
`based on the entirety of the record. Stated another way, either panel would have
`
`decided the case after careful consideration of the same evidence. Nor can
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`Petitioner complain that it lacked notice and an opportunity to be heard regarding
`
`the panel change – Petitioner received notice of the panel change both before and
`
`in the panel decision, and Petitioner’s Request for Rehearing and Board-authorized
`
`Reply gave it ample opportunity to be heard.
`
`Accordingly, we are not persuaded that the change in panel has prejudiced
`
`Petitioner in any way or violated Petitioner’s due process rights.
`
`
`
`5
`
`

`

`IPR2015-01750 (Patent 8,484,111 B2)
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`
`b.
`
`APA
`
`Along the same lines, Petitioner further asserts that the Board’s decision to
`
`exercise discretion and deny institution under § 314(a) violated the APA because
`
`Petitioner was given no notice or opportunity to brief the issue of discretionary
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`denial. Req. Reh’g. 15. Petitioner also argues that the changing of the panel in
`
`these inter partes reviews violates the APA’s requirement that the panel that
`
`presides at the reception of evidence also decides the case. Pet. Reply. at 5 (citing
`
`5 U.S.C. § 554 (d) (“The employee who presides at the reception of evidence
`
`pursuant to section 556 of this title shall make the . . . initial decision required by
`
`section 557 of this title, unless he becomes unavailable to the agency.”). Neither of
`
`these arguments is persuasive.
`
`To begin with, as to the exercise of discretion under § 314(a), the Final
`
`Decision on Remand clearly states that such consideration is not necessary to the
`
`analysis because the decision terminated inter partes reviews based upon the
`
`finding that Salesforce is a RPI and the Petitions are time barred under § 315(b).
`
`Dec. 38. Nevertheless, we are not persuaded by Petitioner’s argument for the
`
`additional reason that, as noted by Patent Owner, the factual findings underpinning
`
`the analysis under § 314(a) are substantially the same as those relevant to the
`
`decision to terminate the IPRs under § 315(b). PO Resp. 7; see also Dec. 38–40
`
`(citing Valve Corporation v. Electronic Scripting Products, Inc., IPR2019-00062,
`
`Paper 11 (PTAB April 2, 2019) (precedential); General Plastic Industries Co. v.
`
`Canon Kabushiki Kaisha, IPR2016-01357, Paper 19 at 15–16 (PTAB Sept. 6,
`
`2017) (precedential)).
`
`Specifically, in considering the evidence of record, we found that RPX had
`
`not shown, by a preponderance of the evidence, that Salesforce is not an RPI in
`
`these proceedings. The factual findings underpinning that RPI analysis are highly
`
`
`
`6
`
`

`

`IPR2015-01750 (Patent 8,484,111 B2)
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`relevant to a determination of whether the relationship between RPX and
`
`Salesforce is the type of “significant relationship” contemplated by Valve and,
`
`thus, would favor denying institution under § 314(a). See Valve Corp., Paper 11, at
`
`9–10. The overlap in the § 314(a) and § 315(b) analyses is made particularly clear
`
`by Petitioner’s failure to explain how its argument may have changed or what
`
`additional factors would require further briefing or consideration. See generally
`
`Req. Reh’g. 15; Pet. Reply 9–10.
`
`In addition, inter partes review proceedings typically proceed on a written
`
`record, where a panel may “preside at the reception of evidence” at any time, by
`
`evaluating the written record, including by reviewing transcripts of oral hearings
`
`(where parties generally may not present new evidence and arguments). Office
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`Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,768 (Aug. 14, 2012) (“No
`
`new evidence or arguments may be presented at the oral argument.”); Consolidated
`
`Trial Practice Guide at 85–86.2 The Board panel deciding the case on remand had
`
`access to, and reviewed, all briefing and evidence (including deposition transcripts)
`
`in the cases, as well as existing transcripts of oral hearings. Thus, the panel here
`
`presided “at the reception of evidence,” as required under 5 U.S.C. § 554(d). Cf.
`
`New England Coalition v. Nuclear Regulatory Comm’n, 582 F.2d 87, 100 (1st Cir.
`
`1978) (indicating that a de novo hearing before the substituted fact finder would
`
`not be required if “it fairly could be said that a credibility evaluation from hearing
`
`and seeing the witnesses testify was unnecessary”) (citing Gamble-Skogmo, Inc. v.
`
`Federal Trade Commission, 211 F.2d 106, 115 (8th Cir. 1954).
`
`Moreover, inter partes review proceedings frequently involve a decision by
`
`administrative patent judges who did not preside at the time some or all evidence
`
`
`2 Accessible at https://www.uspto.gov/TrialPracticeGuideConsolidated; see also 84
`Fed. Reg. 64,280 (Nov. 21, 2019).
`
`
`
`7
`
`

`

`IPR2015-01750 (Patent 8,484,111 B2)
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`was entered into the record, e.g., as submitted with a petition for inter partes
`
`review well before institution. As explained in the USPTO’s standard operating
`
`procedures relating to judge panel assignments, panel changes may, and often do,
`
`occur after an original panel has appeared in a case, including after an oral hearing,
`
`for a number of different reasons, such as a later arising conflict or judge
`
`unavailability. See Patent Trial and Appeal Board Standard Operating Procedure 1
`
`(SOP 1), at 1-3, 13-14 (Rev. 15 Sept. 20, 2018) (SOP 1). The ability to change
`
`panels is a necessary part of Board operations as a general matter, and does not
`
`violate the APA.
`
`Accordingly, we are not persuaded that any violation of the APA occurred
`
`here.
`
`2. Real Party in Interest
`
`a.
`
`RPX’s Business and its Relationship with Salesforce
`
`Petitioner contends we “misapprehended the evidence and fundamentally
`
`misunderstood RPX’s business and its relationship with Salesforce.” Req. Reh’g.
`
`4–6. Specifically, Petitioner asserts that no evidence supports the Board’s findings
`
`that “filing IPRs to protect its clients” is an “important component of RPX’s core
`
`subscription business.” Dec. 15, 32. Rather, Petitioner asserts that the testimony
`
`of Mr. Chuang shows unequivocally that “RPX only files IPRs for and with clients
`
`who separately contract for that service.” Id. at 4. Petitioner contends that Mr.
`
`Chuang’s testimony is corroborated by RPX’s typical membership agreements, of
`
`which Saleforce’s is included, which do not include the filing of IPRs. Id. at 5
`
`(citing Exs. 1020, 1074-1075); see also id. at 6 (citing Exs. 1020–1022, 1073–
`
`1079). Further, Petitioner contends that we erroneously found that Mr. Chuang’s
`
`testimony “conflicts with statements made by RPX in its marketing materials.”
`
`Req. Reh’g. at 5 (citing Dec. 13-14). Specifically, Petitioner asserts that marketing
`
`
`
`8
`
`

`

`IPR2015-01750 (Patent 8,484,111 B2)
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`materials describing how RPX can “acquire a license to the litigated patent and
`
`selectively clear our clients from the suit,” corroborate, rather than conflict with,
`
`the testimony because they describe the acquiring of licenses to clear clients, not
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`the filing of IPRs. Id.
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`We do not agree that we misapprehended or overlooked the evidence
`
`identified by Petitioner in its Opening Brief on remand (Paper 98; public Paper 95)
`
`and its Request for Rehearing. The Decision extensively discusses and analyzes
`
`the evidence identified by Petitioner. Dec. 11–15. For example, the Decision
`
`acknowledges the testimony of Mr. Chuang, the types of membership agreements
`
`offered by RPX including the specific type of membership acquired by Salesforce,
`
`as well as RPX’s marketing materials describing RPX’s provided services. Id.
`
`(citing Ex. 2008, 3, 6, 27; Ex. 1074 § 2; Ex. 1073 ¶¶ 5, 8, 10, 31–32; Ex. 1090
`
`¶ 32; Ex. 1095, 116:6–117:1; Ex. 2006; Ex. 2015). Moreover, the Decision
`
`specifically acknowledges Mr. Chuang’s declaration that RPX provides validity
`
`challenges on behalf of a client only if that client specifically, explicitly, and
`
`separately contracts for such services as well as statements that “the prospect of an
`
`RPX-filed IPR in the event a client is sued by an NPE would not reasonably be a
`
`‘key reason’ for the client to pay membership fees to RPX.” Id. (citing Ex. 1073
`
`¶¶ 10, 32).
`
`The Decision also considered other evidence, however, including RPX
`
`marketing materials, that describes RPX’s stated mission to help “each RPX client
`
`avoid[] more in legal costs and settlements each year than they pay RPX in
`
`subscription fees,” and “help [clients] after a litigation has begun.” Dec. 14 (citing
`
`Ex. 2007); see also id. at 11–15 (discussing Ex. 2008 (RPX’s 2013 Annual
`
`Report), Ex. 1074 (RPX Form Membership Agreement); Ex. 2006 (RPX’s “Client
`
`Relations” webpage), Ex. 2007 (RPX’s “Why Join” webpage). The Decision
`
`
`
`9
`
`

`

`IPR2015-01750 (Patent 8,484,111 B2)
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`similarly considered RPX’s SEC filings describing the close alignment of RPX’s
`
`interests with those of their clients and that “one of [RPX’s] ‘strategies’ for
`
`transforming the patent market is ‘the facilitation of challenges to patent validity,’
`
`one intent of which is to ‘reduce expenses for [its] clients.’” Id. at 13–15 (citing
`
`Ex. 2008; AIT, 897 F.3d at 1351).
`
`The Decision did not, as Petitioner asserts, overlook the fact that RPX’s
`
`marketing materials and SEC filings do not specifically mention IPRs. Rather, we
`
`weighed this evidence describing the alignment of interests between RPX and its
`
`clients, as well as RPX’s business model, and determined that RPX filed these
`
`IPRs to benefit its member Salesforce, regardless of whether the IPRs were filed at
`
`Salesforce’s explicit request. Id. at 14–15. In sum, Petitioner’s argument merely
`
`reflects a difference of opinion as to how to interpret the evidence or the weight to
`
`accord certain evidence, none of which demonstrates that we misapprehended an
`
`argument or overlooked evidence.
`
`b.
`
`RPX’s Filing of IPRs To Benefit Unnamed Clients
`
`Petitioner further contends that we erred in finding that RPX, in addition to
`
`serving its own interests, “also files IPRs to protect its clients” because “the
`
`evidence suggests that RPX selects patents to challenge, at least in part, to reduce
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`risk to existing clients.” Req. Reh’g. 7 (citing Dec. 19). Petitioner disputes the
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`finding that “the vast majority of RPX petitions, forty-seven of fifty-seven, have
`
`involved patents asserted against its clients.” Id. (citing Dec. 16). Petitioner
`
`asserts that we overlooked that 10 of RPX’s IPRs did not involve a client and that
`
`in 21 of 47 IPRs involving patents asserted against RPX clients, RPX named its
`
`clients as co-petitioners. Petitioner contends that this evidence corroborates Mr.
`
`Chuang’s testimony that “while RPX sometimes files IPRs to reduce risks for
`
`
`
`10
`
`

`

`IPR2015-01750 (Patent 8,484,111 B2)
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`client(s), in those circumstances post-VirnetX RPX names those clients as
`
`petitioners and RPIs.” Id. (citing Ex. 1073 ¶¶ 27–30).
`
`As above, we are not persuaded by Petitioner’s argument. The Decision
`
`explicitly acknowledged, and accepted, that RPX has its own interests in filing
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`IPRs against patents it believes are weak, as means to improve RPX’s negotiating
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`position. Dec. 16 (citing Ex. 1019 ¶ 9). The Decision also recognized that RPX
`
`had filed at least ten IPRs challenging patents that were not actively asserted
`
`against any RPX client. Id. (citing Ex. 1073 ¶ 28). However, just as above, we
`
`weighed this evidence against the additional evidence discussed above indicating
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`that RPX has filed IPRs to benefit its existing clients, as well as further evidence of
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`RPX’s history of filing IPRs, to support our finding. Id. at 15–17. For example,
`
`the Decision observes that RPX has filed forty-seven IPRs challenging patents
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`actively asserted against its clients, and all but one of RPX’s fifty-seven IPRs
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`challenged a patent involved in district court litigation. Id. at 16. According to
`
`Petitioner, in twenty-one of the forty-seven filed IPRs, RPX listed its clients as co-
`
`petitioners. Req. Reh’g. 7. However, this necessarily means that in twenty-six
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`cases, RPX filed IPRs without naming its client as co-petitioner. In weighing all of
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`the evidence, we determined RPX filed these IPRs to benefit Salesforce. Dec. 16–
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`17. Again, as above, Petitioner’s argument merely reflects a difference of opinion
`
`as to how to interpret the evidence or the weight to accord certain evidence.
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`c. Whether RPX Takes Clients’ Interests into Account When Filing IPRs
`
`Petitioner further contends that we misapprehended the evidence in finding
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`that RPX “‘takes its clients’ interests into account’ when deciding to file IPRs
`
`where the client is not named.” Req. Reh’g. 8–10. Petitioner contends that the
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`Decision improperly relied on the AIT decision as evidence although there is no
`
`evidence that “a client in suit was a positive factor that favored RPX filing any
`
`
`
`11
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`

`

`IPR2015-01750 (Patent 8,484,111 B2)
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`post-VirnetX IPR on its own.” Id. Petitioner asserts that the evidence supports the
`
`opposite conclusion because “Mr. Chiang was unequivocal that in these IPRs the
`
`time-barred party being an RPX client factored against filing.” Id. at 9 (citing Ex.
`
`1090, ¶ 28).
`
`Petitioner’s argument is unpersuasive because it merely restates the
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`arguments that the Decision considered and rejected. Contrary to Petitioner’s
`
`argument, the Decision makes explicit factual findings, based on the evidentiary
`
`record, that a client subject to a lawsuit was a positive factor in determining
`
`whether to file an IPR. Notably, RPX’s Best Practice Guide explicitly states that
`
`in choosing potential patents to challenge on invalidity grounds, the selection team
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`takes into account, among other characteristics, the number of current and
`
`potential RPX clients in suit.” Dec. 18 (citing Ex. 2018) (emphasis added).
`
`Petitioner further argues that the Decision’s finding that “RPX’s Best
`
`Practice Guide intentionally operates . . . to circumvent the Board’s RPI case law,”
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`is not supported by evidence. Req. Reh’g. 8–9 (citing Dec. 18 (citing Ex. 2018)).
`
`Petitioner asserts that Mr. Chiang’s testimony establishes that the Best Practice
`
`Guide was intended to ensure that RPX would “comply with the law on RPI and
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`accurately name all RPIs in all future petitions.” Id. at 9.
`
`We are not persuaded. Here, the Decision weighs Mr. Chiang’s testimony
`
`against further evidence suggesting that RPX created the Best Practice Guide to
`
`avoid clients being found to be RPIs by circumventing the Board’s case law. See
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`Dec. 18–19 (citing Ex. 1018; Ex. 1019 ¶¶ 14, 16, 18; Ex. 2018). For example, the
`
`Decision considered that the Best Practice Guide was created shortly “after
`
`receiving and studying decisions denying institution in RPX’s IPRs against
`
`VirnetX,” where RPX had been found to be an RPI. Id. at 18 (citing Ex. 1090
`
`¶ 16). The Decision further considered that the Best Practice Guide was intended
`
`
`
`12
`
`

`

`IPR2015-01750 (Patent 8,484,111 B2)
`IPR2015-01751, IPR2015-01752 (Patent 7,356,482 B2)
`
`to ensure that clients were not found to be RPIs while simultaneously
`
`implementing a “systematic process for identifying potential IPR candidates and
`
`preparing IPRs,” that takes into account “the number of current and potential RPX
`
`clients in suit.” Id. at 18–19 (citing Ex. 1019 ¶ 14; Ex. 2018). Again, we are not
`
`persuaded that the Decision’s finding is unsupported by evidence. Rather,
`
`Petitioner’s argument merely reflects a difference of opinion as to how to interpret
`
`the evidence or the weight to accord certain evidence.
`
`Petitioner further argues that “[t]he Decision relies on the Federal Circuit
`
`raising—not answering—a question about whether RPX’s SEC filing’s reference
`
`to facilitating validity challenges could ‘imply’ that RPX files IPRs for its clients.”
`
`Req. Reh’g. 10 (citing Dec. 19-20). Petitioner asserts that the testimony of Mr.
`
`Chuang explains that the SEC filing’s reference to “the facilitation of challenges to
`
`patent validity” refers to aiding a client making the client’s own validity challenge,
`
`not filing an IPR on the client’s behalf. Id. (citing Ex. 2008, 4).
`
`We are not persuaded. The Decision does not merely rely on the Federal
`
`Circuit raising a question, but rather makes a finding of fact by weighing the
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`entirety of the evidence of record. The Decision considers not only Mr. Chuang’s
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`testimonial evidence, but the evidence described above relating to the relationship
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`between RPX and Salesforce and RPX business practices. In doing so, the
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`Decision finds that the SEC statement indicates that filing IPR challenges are part
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`of a broad suite of “solutions” and “services” that “reduce expenses for our
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`clients.” Dec. 20. Again, Petitioner’s argument merely reflects a difference of
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`opinion as to how to interpret the evidence or the weight to accord certain
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`evidence.
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`13
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`d. Whether RPX Was Representing Salesforces’s Interests
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`Petitioner further contends that we erred in finding that RPX was
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`representing Salesforce’s interests. Req. Reh’g. 11–14 (citing Dec. 21, 31). First,
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`Petitioner asserts that we misapprehended the services that Salesforce paid RPX to
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`provide and overlooked the evidence demonstrating why Salesforce joined and
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`renewed their membership with RPX, including conditioning its renewal not on
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`RPX doing anything relating to AIT, but instead on a specific licensing transaction
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`detailed in the confidential record. Id. at 11–12.
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`We are not persuaded that we misapprehended or overlooked this evidence.
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`To the contrary, as noted above, the Decision recognizes the types of membership
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`agreements offered by RPX, including the specific type of membership acquired
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`by Salesforce. Dec. 11–15. (citing Ex. 2008, 3, 6, 27; Ex. 1074 § 2; Ex. 1073 ¶¶ 5,
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`8, 10, 31–32; Ex. 1090 ¶ 32; Ex. 1095, 116:6–117:1). The Decision observed that
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`record evidence describes “575 dismissals for RPX clients in 74 litigations” by
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`RPX “acquir[ing] a license to the litigated patent.” Id. at 14 (citing Ex. 2007; Ex.
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`1073 ¶ 31). The Decision also acknowledged that “there is no persuasive evidence
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`that Salesforce paid RPX for filing these specific petitions for inter partes review.”
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`Id. at 25 (citing Ex. 1019 ¶ 20). However, as described above, the Decision
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`weighed this evidence against the evidence demonstrating the significant
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`relationship between Salesforce and RPX, and the strong economic incentives on
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`RPX to represent Salesforce’s interests. Id. at 25–26.
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`Petitioner further argues that “[t]he finding that RPX creates the
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`‘appearance’ of pursuing its own interests despite Salesforce’s interests being ‘of
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`paramount importance to RPX’ given ‘significant economic incentives’ (Dec. 35)
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`diminishes RPX’s acknowledged interests (Dec. 16) and misapprehends RPX’s
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`incentives.” Req. Reh’g. 11. Petitioner asserts that the panel “‘agree[d]’ with the
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`Federal Circuit that RPX’s website might ‘imply’ RPX files IPRs to serve its
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`client’s interests,” but did not determine whether the implication of the Court was
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`supported by evidence, and cited no evidence to support that there were “‘strong
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`economic incentives on RPX to represent Salesforces’ interests’ in these IPRs.”
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`Id. at 11–12 (citing Dec. 25).
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`We are not persuaded by Petitioner’s argument. Contrary to Petitioner’s
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`assertions, the Decision does not discount RPX’s interests, but rather,
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`acknowledges the interest that RPX may have in filing IPRs. Dec. 16 (“We can
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`accept RPX’s representation that filing IPRs against patents it believes are weak
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`improves its negotiating position”). As stated by the Federal Circuit, however,
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`there is not necessarily “only one interested party in each case.” AIT, 897 F.3d at
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`1347. Here, the Decision considered further evidence, described above, which
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`supports the finding that there were “strong economic incentives on RPX to
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`represent Salesforces’ interests.” Dec. 25, 34. The evidence, such as that
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`described above, supports the Federal Circuit’s implication that “RPX can and
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`does file IPRs to serve its clients’ financial interests.” Id. at 26 (quoting AIT, 897
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`F.3d at 1351–52) (citing Ex. 2007). In light of these incentives, the Decision found
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`that RPX “help[s] paying members ‘extricate themselves from NPE lawsuits.’”
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`Dec. 26. As the Decision noted, extricating a member from a lawsuit could be
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`performed through licensing, or, as in this case, through challenging the validity of
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`the asserted patent. Id.
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`Petitioner further argues that “[t]he Board’s finding that communications
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`between RPX and Salesforce about the [Salesforce litigation involving AIT] were
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`‘naturally tied to possible defenses, of which an IPR challenge is one’ is facially
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`wrong and unsupported.” Req. Reh’g. 13–14 (citing Dec. 30). Petitioner asserts
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`that the evidence establishes that possible defenses were not discussed and thus, no
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`evidence indicates that RPX’s relationship with Salesforce was based on efforts to
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`address the same patents. Id. (citing Exs. 1019, 1073, 1090, 1094, 1095).
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`Petitioner’s argument is not persuasive because, as stated in the Decision,
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`“[e]ven if RPX did not directly discuss filing an IPR, the discussions of litigation
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`are naturally tied to possible defenses.” Dec. 30. Indeed, the evidence reflects
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`that, prior to the filing of IPR Petitions here, RPX and Salesforce discussed the
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`Salesforce litigation on numerous occasions. Dec. 29–30 (citing Ex. 1019 ¶¶ 22–
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`28; see, e.g., id. at ¶ 22 (“in the normal course of RPX’s business, . . . RPX
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`communicates with clients about NPE litigations. . . . As a matter of course, RPX
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`shares intelligence and insight regarding new litigations with its clients.”)). As
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`noted in the Decision, those discussions of pending litigation by AIT against
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`Salesforce, followed by RPX filing IPR petitions on the same patents involved in
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`that litigation, weighed in favor of finding that Salesforce was an interested party.
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`Id. at 30.
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`e.
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`Finding of Salesforce to be a Beneficiary
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`Petitioner argues that we erred as a matter of law by overlooking what is
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`legally required for Salesforce to be a “beneficiary.” Req. Reh’g. 14. Further,
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`Petitioner further asserts that we overlooked the authority cited by Petitioner that
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`“‘behest’ means command, and that RPX cannot have acted as Salesforce’s
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`representative unless RPX were appointed by Salesforce to so act.” Id. at 14–15.
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`Petitioner asserts that the evidence, at most, demonstrates that RPX filed as a
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`“mere volunteer to benefit Salesforce.” Id. at 15. We are not persuaded because
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`Petitioner’s argument proposes that we apply a more narrow and rigid analysis of
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`RPI than the one instructed by the Federal Circuit in these cases. As stated by the
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`Federal Circuit, “[d]etermining whether a non-party is a ‘real party in interest’
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`demands a flexible approach that takes into account both equitable and practical
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`16
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`considerations, with an eye toward determining whether the non-party is a clear
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`beneficiary that has a preexisting, established relationship with the petitioner.”
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`AIT, 897 F.3d at 1351; see also Dec. 4–5. Applying this flexible approach to
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`the evidence of record, we determined that Salesforce is an RPI in these
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`proceedings.
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`IV. CONCLUSION
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`We deny Petitioner’s Request for Rehearing because we determine that
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`Petitioner has not met its burden to show that, in the Final Decision on Remand,
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`the pa