Welcome to Skilled in the Art. I'm Law.com IP reporter Scott Graham. Sometimes it's not whether you win or lose, but how you play the hand you're dealt. That's what came to mind listening to Wilmer Cutler Pickering Hale and Dorr partner Mark Fleming keep an even keel while taking shot after shot from Federal Circuit Judge Kimberly Moore with about $1 billion on the line for Apple Inc. I've got details below. Plus, the U.S. Patent and Trademark Office has a new solicitor and the Electronic Frontier Foundation is trying to pry open some licensing information from a large (and well-financed) patent assertion entity. As always you can email me your thoughts and follow me on Twitter.

Federal Circuit Judge Kimberly Moore and Wilmer Cutler Pickering Hale and Dorr partner Mark Fleming.

Earning Combat Pay at the Federal Circuit

There are few tougher tests for a patent litigator than appearing before an engaged Kimberly Moore at the Federal Circuit. Judge Moore's ability to pose razor-sharp questions at rapid speed require extra measures of nimbleness and resilience.

I'm adding Wilmer Cutler Pickering Hale and Dorr partner Mark Fleming to the list of oral advocates who can hang with Moore in a heavyweight contest. I don't know if Fleming is going to win VirnetX v. The Mangrove Partners, which he argued Tuesdayfor Apple Inc. But he went toe-to-toe with the judge over the Patent Trial and Appeal Board's joinder rules and never lost his footing.

“Do you really think you can stand there and say this other interpretation is not reasonable?” Moore asked Fleming at one point. “You as a person, divorced from you as the litigator for Apple for a moment. Because it's really surprising to me that you would say [VirnetX's] interpretation is not reasonable. Because it's quite frankly my interpretation.”

“I obviously don't mean to suggest your honor that you are being unreasonable, if that is your view of things,” Fleming replied, before noting that another Federal Circuit panel had endorsed his position in a decision since overruled on other grounds.

Before exploring the back-and-forth further, let's consider some of the pressure Fleming was facing. He was 1) representing one of the firm's premier clients 2) in a dispute that could affect more than $900 million in trial court judgments 3) against a backdrop of the stock market adding and subtracting millions from his opponent's market cap at every twist and turn in the argument (I wrote more about that here.)

Specifically, Apple is trying to fight off a series of mega-verdicts won by patent holder VirnetX Inc. in the Eastern District of Texas. The most recent are for $302 million in 2016—enhanced to $440 million post-trial—and $502 million last year.

So Apple has been pulling out all the stops trying to invalidate VirnetX's patents at the Patent Trial and Appeal Board. Apple's initial inter partes review petitions were ruled untimely, so it tried to partner with RPX Corp., but those petitions were excluded as well. Finally, a hedge fund called The Mangrove Partners Master Fund got two petitions instituted. Apple was then allowed to join those proceedings, because the America Invents Acts says requests for joinder aren't subject to the one-year time bar.

VirnetX, joined by amici BIO and PhARMA, said that reading of the AIA is wrong, and that it allows time-barred infringers to unfairly “gang up” on patent owners and pound them with serial validity challenges years after they've been sued.

“So how is it that Apple is properly joined in this case?” Moore asked Fleming Tuesday. “Aren't they time-barred from filing their own petition under [AIA] 315(b)?”

“If they had filed their own separate petition, yes,” Fleming began to say.

“Wait, wait, time out,” Moore interrupted. “They did file their own separate petition.”

“Absolutely, yes we did,” Fleming conceded.

“And that petition is what was joined, correct?” Moore said

“Correct,” Fleming agreed.

“So how is it they were properly joined?” Moore pressed.

Fleming pointed out that Section 315(b) says the one-year time bar “shall not apply to a request for joinder.” But Moore replied that 315(c) limits joinder to “properly filed” petitions. That means timely, she added.

Fleming said there's some ambiguity there. “And if there's ambiguity on that point, the tiebreaker is Chevron deference”—the court must defer to the PTO's interpretation of Section 315.

“Really?” Moore asked, seemingly floored that Fleming would invoke a dead doctrine walking. This is when she asked him to step out of his role as Apple litigator and address her as a reasonable person.

Chief Judge Sharon Prost seemed to be on the same page. “How do we get to where you want to go if we're not buying into the Chevron deference?” she asked.

At that point, Fleming pivoted to the issue of prejudice. Apple hadn't raised any new arguments or evidence beyond Mangrove's at the PTAB, he said. So “there is no harm here, and no remedy that this court would impose that would be meaningful.”

Now Moore brightened. “I think you might be on to something here,” she told him.

It sounded as if Moore and her colleagues are going to send part of the case back to the PTAB, with some kind of limits on Apple's further involvement. By the end of the argument, Fleming had earned Moore's praise for proposing a creative way out.

“I like creative,” she said.

Tom Krause to Run PTO Solicitor's Office

The PTO has a new solicitor. Deputy Solicitor Tom Krause, who's been with the office since 2002, has been elevated to the top job.

“Tom is extremely well-qualified and understands the importance of reliable, predictable, and high-quality intellectual property rights,” PTO Director Andrei Iancusaid in a news release. “I'm confident that his experience and expertise will serve our IP system well as he leads the Solicitor's Office into the future.”

Krause is getting a full-throated endorsement from his predecessor, Nate Kelley, who left the office last summer and is now a partner at Perkins Coie. Kelley described him Thursday as an accomplished academic and skilled manager. “He manages the attorneys, but he manages from enough distance that they can make their own choices,” he said.

He also described Krause as one of the office's foremost authorities on Section 101, which he said will come in handy if the office's new guidance for examiners is challenged in court. “Tom's probably the perfect guy for that,” Kelley said.

Krause attended Harvard where he was executive editor of the law review. He clerked for Ninth Circuit Judge Alex Kozinski and practiced at Covington & Burling before joining the PTO. He also served in the U.S. Navy as an officer on a fast attack submarine, and was the chess champion of South Carolina in 1985, according to the PTO.

“In the solicitor's office, I've had the privilege of working with some of the most talented and inspiring lawyers I've ever known,” Krause said in the press release. “I look forward to leading this extraordinary group of professionals and continuing the traditions of excellence set by my predecessors.”

EFF Trying to Unlock Uniloc Info

The Electronic Frontier Foundation is looking to strike a blow for openness in court proceedings—and maybe pry open some intel on a large patent assertion entityalong the way.

EFF filed a motion to intervene Wednesday in Uniloc USA v. Apple, a patent infringement case pending before U.S. District Judge William Alsup. Since the suit was filed, Uniloc transferred the patents to an entity called Uniloc 2017, which RPX has reported is part of a $400 million IP fund run by Fortress Investment Group. Uniloc 2017 then sought to join the suit as co-plaintiff.

Apple moved to dismiss in October, contending that the transaction unwound each party's standing. But almost the entire motion is under seal. “Apple's opening brief is so heavily redacted that almost all of the background and argument sections are withheld,” EFF complains in its motion to intervene, signed by senior staff attorney Daniel Nazer.

Uniloc has attested that the documents contain “sensitive, confidential and proprietary information related to financial data, licensing terms and business plans.” EFF argues that “rote justification” can't justify shielding every provision of its licensing agreements.

“Courts do not apply a simplistic rule allowing patent license and assignment agreements to be withheld in their entirety,” Nazer argues.

A lot of businesses would like to get their hands on that information. In the last six months, Uniloc 2017 has brought infringement suits against Google, Samsung, Cisco, Netflix, ABC, Box and others.

Morgan Lewis' Manning to Take Pro Bono Role

Morgan Lewis & Bockius partner Susan Baker Manning is moving into a full-time pro bono role with the firm. Manning told my ALM colleague Lizzy McLellan that her background as an IP litigator will help as she becomes the firm's first senior pro bono trial lawyer.

“Taking complicated facts and figuring out how to turn that into a real advocacy story is one of the things I have loved about intellectual property litigation and it is exactly applicable to a lot of the cases we're looking at here,” Manning said.

Manning recently filed an amicus brief on behalf of several U.S. senators in support of six asylum seekers opposing President Donald Trump's ban on asylum claims outside ports of entry. Several years ago, she represented a number of businesses who filed an amicus brief before the U.S. Supreme Court in Obergefell v. Hodges, arguing that same-sex marriage discrimination is harmful to the business community.

'Whistleblowers' Can't Silence HouseCanary Verdict

Susman Godfrey's $740 million trade secret judgment for online real estate appraiser HouseCanary has withstood a post-trial attack from competitor Amrock and Gibson Dunn & Crutcher.

Judge David Canales of Bexar County, Texas, held four days of hearings over the last month after Amrock promised that former HouseCanary employees would blow the whistle on HouseCanary's trial narrative. Gibson Dunn partner Randy Mastro had called the March 2018 verdict “one of the most egregious frauds that I have ever seen in my 35-year career as a litigator and former federal prosecutor.”

But on Tuesday, Canales turned away Amrock's new trial motion. “This was precisely the right decision,” Susman Godfrey partner Kalpana Srinivasan said in a written statement. Amrock produced no new information, but rather a parade of “so-called 'whistleblowers'” who were trying to advance their own business interests with Amrock and affiliate Quicken Loans, she said.

“Amrock cannot distract from the fact that it stole HouseCanary's proprietary technology,” added Susman partner Max Tribble, who tried the case with Srinivasan.

Next stop, Texas Court of Appeals.

That's all from Skilled in the Art this week. I'll see you all again on Tuesday.