Appeal
1. “Whether the Director’s sanctions rulings, including refusal to terminate the IPR, were arbitrary, capricious, contrary to law, or otherwise inconsistent with reasoned decisionmaking.” 2. “Whether Intel was improperly joined because its IPR petition was untimely and thus not ‘properly file[d],’ 35 U.S.C. § 315(c).” 3. “Whether the PTAB’s obviousness rulings must be set aside because they rest on an erroneous claim construction and are unsupported by substantial evidence or reasoned decisionmaking.”
Cross Appeal:
1. “Did the Director act in excess of statutory authority by awarding VLSI attorney fees in IPR2021-01064 where the statute does not ‘specifically and explicitly’ authorize an attorney fee award, as required by the ‘American Rule’ and governing Supreme Court precedent?”
2. “Was the Director’s award of sanctions ‘arbitrary and capricious’ or ‘contrary to constitutional right or immunity,’ 5 U.S.C. § 706(2)(A) or (B), because the award penalizes an objectively reasonable petition immunized under the Noerr-Pennington doctrine?”
3. “Was the Director’s sanction award an abuse of discretion or contrary to law, because it failed to make showings of ‘sole,’ ‘but for’ causal links between wrongful conduct and costs, as required by Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101 (2017)?”
4. “Were the Director’s determination of abuse of process and award of attorney fees contrary to constitutional right or immunity, short of statutory right, arbitrary and capricious, or unsupported by substantial evidence, for failure to provide OpenSky with notice and opportunity to present its case, failure to observe requirements for an agency’s receipt of substantial evidence, and failure to provide the ‘cogent explanation’ required by the APA?”
