Welcome to Skilled in the Art. I'm Law.com IP reporter Scott Graham, and I'm hoping that 85% of today's briefing will be comprehensible. You may have to use context to fill in the rest (explanation below). Here's what's crossing my desk this week:

• RPX asks Federal Circuit to recall the mandate—from a 2018 decision.

• Everyone's on good behavior for Day One of a virtual patent trial in Virginia.

• Desmar—s partner has trouble getting through to Judge —sup.

As always, you can email me your feedback and follow me on Twitter.

Perkins Coie partner Nate Kelley

RPX, Perkins Look to Turn Back the PTAB Clock

The Patent Trial and Appeal Board is an efficient adjudicatory machine. The America Invents Act mandates that IPRs be decided in 12 months, and the PTAB is money on that deadline in virtually every case.

Unless, that is, a case is on remand from the U.S. Court of Appeals for the Federal Circuit. Then the statutory deadline doesn't apply any more, and things can slow to a crawl.

Take RPX Corp.'s IPRs of two patents held by Applications in Internet Time (AIT). Does that name ring a vague bell? It's because nearly two years ago, the Federal Circuit issued a precedential decision ordering the PTAB to take a second look at whether RPX was doing the bidding of Salesforce.com when it got two AIT patents invalidated.

Since then, the PTAB has been looking. And looking. After six months of additional evidence and briefing, the board held an oral hearing in April of last year before APJs Lynne Pettigrew, Mitchell Weatherly and Jennifer Chagnon. But no decision yet.

Now RPX is asking the Federal Circuit to take the case back from the PTAB and vacate its 2018 decision. Pretend it never happened. Because the Supreme Court ruled last month in Thryv v. Click-to-Call that the Federal Circuit doesn't have jurisdiction to review the PTAB's time-bar decisions. That's how the Federal Circuit should have ruled in Applications in Internet Time v. RPX, former PTAB Acting Chief Judge Nate Kelley and his Perkins Coie colleague Dan Bagatell argue for the defensive patent aggregator. "RPX recognizes that recalling the mandate and vacating a previous decision are unusual steps, but this is an extraordinary situation," they wrote on Monday. And "there's no issue of repose or finality because the PTAB has not issued any ruling on remand."

The important point, RPX argued directly to the PTAB on Tuesday, is that the board long ago ruled on the merits that the AIT patents are invalid. "The Supreme Court in Thryv made clear that an important reason that Congress made a time bar non-appealable is the AIA's emphasis on efficiently weeding out, quote, 'bad patent claims,' unquote," Wolf Greenfield & Sacks partner Rich Giunta told the board.

AIT attorney Steve Sereboff of SoCal IP Law Group urged the board to decide the real party issue now, without waiting for action from the Federal Circuit. "Staying these cases would be unfair. It would be shenanigans. It would be a denial of due process," he told the board.

The board agreed to accept briefing on the stay, but RPX is apparently still a little worried about being sucker-punched. It's consented to only a seven-day extension (to May 21) for AIT to respond at the Federal Circuit. "RPX would be willing to consent to the full 14-day extension requested by AIT if AIT were willing to agree to a stay of the PTAB proceedings pending this Court's ruling," Kelley and Bagatell wrote. "AIT has refused to agree to such a stay, however."

SPONSORED BY ALM

Office 365 For Dummies, 3rd Edition ($19.99 Value) FREE for a Limited Time

Office 365 For Dummies offers a basic overview of cloud computing and goes on to cover Microsoft cloud solutions and the Office 365 product in a language you can understand. This includes an introduction to each component which leads into topics around using each feature in each application. READ MORE

Zooming to Trial in Virginia

The first virtual patent trial is underway in the Eastern District of Virginia. Opening statements kicked off Thursday morning in Centripetal Networks v. Cisco Systems before U.S. District Judge Henry Coke Morgan.

Kramer Levin Naftalis & Frankel partner Paul Andre will be the answer to the IP trivia question: Who gave the first opening via Zoom?

"Steven Rogers formed Centripetal Networks in 2009. Working from his basement, in Vienna, Va., he thought he had a better idea, a way to solve the cybersecurity problem that was affecting the country at the time," is how Andre began the proceedings.

I listened to the audio feed on and off Thursday and, notwithstanding occasional minor technical glitches, it sounded like a fairly standard bench trial, to the parties' and the court's great credit. (Cadwalader, Wickersham & Taft partner John Moehringer explained the various challenges here.)

Centripetal founder Rogers was the first witness to take the virtual stand, explaining threat intelligence and listing Centripetal customers such as the Department of Homeland Security and the Nasdaq stock exchange.

He said he and his son met with Cisco executives in 2016 and disclosed techniques for rapidly analyzing massive amounts of data. Now, he says, Centripetal has to compete against its own technology. "It kills your business," he told Morgan.

Everyone seemed on good behavior for this first day. Cisco's attorneys avoided speaking objections. Andre gave a little more narrative but waited for Cisco's lawyers to complete their questions before jumping in.

There was also sufficient bandwidth in the virtual format for Davis Polk & Wardwell partner Neil MacBride, representing Cisco, to get under Rogers' skin during cross examination.

"Do you agree that all of your patents involve the concept of applying millions of threat indicators at wire speed?" MacBride asked.

"No, absolutely not. I don't agree with that," Rogers said. "They're all designed to run at speed. That doesn't mean they have to."

"Mr. Rogers, I believe you testified different previously?" MacBride asked.

Morgan interceded at that point. "It's up to the jury to decide if he testified different," the judge said. "And I'm the jury."

Judge William Alsup, U.S. District Court for the Northern District of California.

G-R-E-E-D, Find Out What It Means for Fees

G-R-E-E-D. U.S. District Judge William Alsup will spell it out for you if you're an attorney representing Apple or Cisco Systems and you're seeking several millions in exceptional case attorneys fees. My write-up of the judge's comments from Thursday's Section 285 hearing can be found here.

Straight Path v. Apple and Cisco was conducted the old-fashioned virtual way—telephonically—but it was not without its own technical challenges. Desmarais partner Justin Wilcox's phone repeatedly went silent for brief instants, as if incoming calls were disrupting the signal. That made it tougher for him to critique special master Matt Borden's recommendation that Cisco's $3.8 million fee request be cut in half.

Wilcox argued that Cisco voluntarily passed up some fees billed by co-counsel Baker Botts. "That was about ——ty-thousand, and it didn't seek its appellate fees for defending your honor's summary judgment order, which amounted ——ty ——," Wilcox said.

"I don't know if I'm the only who's having this problem, but you are cutting in and out," court reporter Ruth Levine Ekhaus interjected. "I'm losing words."

"I'm the judge and I agree with the court reporter," Alsup added. "I can get about 85% of your words, and I'm inferring what the other 15% is from context."

Wilcox confirmed that he was using a land line and tried to press ahead. "Baker Botts did keep contemporaneous billing records internally," he told the court. "We performed that analysis. That's in my —claration. We think maybe ——aster Borden …"

Ekhaus interrupted again. "I'm going to have to litter the transcript with 'inaudible' because I'm losing words," she said.

"Here's the way we're going to handle it," Alsup said. "Cisco's argument is completed now, because it's incomprehensible." He said it wasn't Wilcox's fault, but "you can't have a transcript like that."

Wilcox dialed back in a few minutes later, after Apple had given its presentation, and completed his argument smoothly.

Alsup said he'll issue an order within a week.

Who Got the Work?

Adobe Systems has turned to Farella Braun + Martel for two suits alleging copyright infringement of its ColdFusion software platform.

Adobe says it licenses ColdFusion only for users who want to create internal websites and mobile apps, such as for submitting expense reports or tracking inventory. Licensees who want to build public-facing sites have to negotiate custom licenses to account for the fact that multiple parties, not just the licensee, will benefit, Adobe contends.

Adobe Systems v. Cornerstone Information Systems accuses Cornerstone of violating the license with its iBank travel expense and reimbursement service.

Adobe Systems v. Silk Road Technology accuses Silk Road of violating the license with a recruiting and HR software product called OpenHire.

Both complaints were filed Monday in the Northern District of California and are signed by Farella partner Alex Reese. Also on the filings are partner Eugene Mar and senior associate Winston Liaw.

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