       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                 ______________________

GLOBAL EQUITY MANAGEMENT (SA) PTY. LTD.,
               Appellant

                            v.

  EBAY INC., ALIBABA.COM HONG KONG LTD.,
              BOOKING.COM B.V.,
                     Appellees
              ______________________

                  2019-1303, 2019-1304
                 ______________________

    Appeals from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. IPR2016-
01828, IPR2016-01829.
                 ______________________

       SEALED OPINION ISSUED: December 23, 2019
       PUBLIC OPINION ISSUED: January 14, 2020 *
                ______________________

   MARK A. CANTOR, Brooks Kushman PC, Southfield, MI,
argued for appellant. Also represented by THOMAS A.
LEWRY.



   *   This opinion was originally filed under seal and has
been unsealed in its entirety.
2               GLOBAL EQUITY MANAGEMENT (SA) v. EBAY INC.




    BENJAMIN EDWARD WEED, K&L Gates LLP, Chicago,
IL, argued for all appellees. Appellee Ebay Inc. also repre-
sented by GINA A. JENERO.

    CAREY RICHARD RAMOS, Quinn Emanuel Urquhart &
Sullivan, LLP, New York, NY, argued for all appellees. Ap-
pellee Alibaba.com Hong Kong Ltd. also represented by
BRETT NELSON WATKINS, Houston, TX; JEFFREY GERCHICK,
Washington, DC.

   TODD M. SIEGEL, Klarquist Sparkman, LLP, Portland,
OR, for appellee Booking.com B.V. Also represented by
ANDREW M. MASON.
                ______________________

Before WALLACH, CLEVENGER, and STOLL, Circuit Judges.
WALLACH, Circuit Judge.
     Appellees eBay Inc., Alibaba.com Hong Kong Ltd., and
Booking.com B.V. (“Booking”) (collectively, “Petitioners”)
sought inter partes review (“IPR”) of claims 1, 2, 16, and 28
of U.S. Patent No. 6,690,400 (“the ’400 patent”) and
claims 1–7 of U.S. Patent No. 7,356,677 (“the ’677 patent”)
(together, “the Challenged Patents”), both owned by Appel-
lant Global Equity Management (SA) Pty. Ltd. (“GEMSA”).
GEMSA moved to terminate the IPR proceedings pursuant
to 35 U.S.C. § 315(a)(1) (2012) and 37 C.F.R. § 42.8(b)(1)
(2018). J.A. 2357–75 (Motion to Terminate IPR2016–
01828), 6662–80 (Motion to Terminate IPR2016-01829). In
a single decision, the U.S. Patent and Trademark Office’s
Patent Trial and Appeal Board (“PTAB”) denied GEMSA’s
motions to terminate. See eBay Inc. v. Glob. Equity Mgmt.
(SA) Pty. Ltd. (eBay I), Nos. IPR2016–01828, IPR2016–
01829, 2018 WL 485988, at *3 (P.T.A.B. Jan. 18, 2018) (De-
cision) (J.A. 3487–93, 7801–07). The PTAB subsequently
found claims 1 and 2 of the ’400 patent and claims 1, 2, 6,
and 7 of the ’677 patent unpatentable. See eBay Inc. v.
Glob. Equity Mgmt. (SA) Pty. Ltd. (eBay II), No. IPR2016–
GLOBAL EQUITY MANAGEMENT (SA) v. EBAY INC.                  3



01828, 2018 WL 1881463, at *12 (P.T.A.B. Apr. 18, 2018)
(Final Written Decision) (J.A. 1–31); eBay Inc. v. Glob. Eq-
uity Mgmt. (SA) Pty. Ltd. (eBay III), No. IPR2016–01829,
2018 WL 1898071, at *21 (P.T.A.B. Apr. 19, 2018) (Final
Written Decision) (J.A. 32–78).
   GEMSA appeals. 1 We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(4)(A) (2012). We affirm.
                       BACKGROUND
    Between 2015 and 2016, GEMSA filed nearly forty pa-
tent infringement lawsuits in the U.S. District Court for
the Eastern District of Texas (“Eastern District of Texas”),
alleging infringement of the Challenged Patents. J.A. 330–
33. The majority of GEMSA’s lawsuits were filed against
customers of Amazon Web Services, Inc. and
VADATA, Inc., both wholly-owned subsidiaries of Ama-
zon.com, Inc., 2 alleging infringement based on the use of
Amazon’s technology. J.A. 2379–83. 3 GEMSA’s remaining
lawsuits were filed against entities—including the Peti-
tioners—that were not Amazon customers. J.A. 2713
(GEMSA admitting that the Petitioners were “not using”
the Amazon technology), 7018 (same).




    1    On appeal, GEMSA does not challenge the PTAB’s
patentability determinations; rather, GEMSA challenges
only the PTAB’s Decision denying GEMSA’s Motions to
Terminate. See generally Appellant’s Br.
    2    Consistent with the parties’ briefs, we will refer to
Amazon.com, Inc., Amazon Web Services, Inc., and
VADATA, Inc. individually and collectively as “Amazon.”
See, e.g., Appellant’s Br. 7 n.3, Appellee’s Br. 4 n.3.
    3    The Amazon technology-at-issue included “cloud-
based products and services” (“the Amazon technology”)
that were developed, provided, and serviced by Amazon.
J.A. 2378.
4                GLOBAL EQUITY MANAGEMENT (SA) v. EBAY INC.




     In July 2016, Amazon filed a complaint for declaratory
judgment in the U.S. District Court for the Eastern District
of Virginia (“Eastern District of Virginia”), J.A. 2376–95
(Complaint for Declaratory Judgment), “to relieve their
customers of the unnecessary burden of litigating
GEMSA’s cases targeting [the] Amazon technology, and to
once and for all remove the cloud of uncertainty that has
been cast over that technology,” J.A. 2385. Amazon alleged
that GEMSA had “strategically chosen to sue [Amazon’s]
customers rather than [Amazon itself] to avoid testing its
claims against the suppliers of the accused technology, who
have the greatest interest in and ability to defend against
[GEMSA’s] claims, in the hopes of extracting cost of litiga-
tion settlements from scores of customers.” J.A. 2384.
Later that month, GEMSA “amended the complaints in
[twenty] of its [thirty-five] . . . lawsuits” in the Eastern Dis-
trict of Texas to “add” Amazon “as [a] defendant[].”
J.A. 2412.
     In August 2016, Amazon filed a motion in the Eastern
District of Texas to dismiss or transfer GEMSA’s lawsuits
“against customers” of Amazon, J.A. 2411; see J.A. 2407–
33 (Motion to Dismiss or Transfer), arguing that, because
“Amazon is the real party-in-interest” (or “RPI”) “with re-
spect to GEMSA’s infringement allegations, . . . venue is
proper in the first-filed forum, the Eastern District of Vir-
ginia,” J.A. 2425. Thus, Amazon argued, the Eastern Dis-
trict of Texas should “dismiss GEMSA’s claims against
Amazon . . . or, in the alternative, transfer those claims to
the Eastern District of Virginia.” J.A. 2427. In Septem-
ber 2016, Booking likewise moved to stay GEMSA’s claims
of infringement in the Eastern District of Texas “pending
resolution” of Amazon’s declaratory judgment action,
J.A. 2464, arguing that “Amazon, as the developer, owner,
and supplier of the accused technology, is the real party-in-
interest with respect to GEMSA’s [Amazon]-related in-
fringement allegations,” J.A. 2469; see J.A. 2464–74
GLOBAL EQUITY MANAGEMENT (SA) v. EBAY INC.                   5



(Motion to Stay). 4 In January 2017, the Eastern District of
Texas stayed GEMSA’s lawsuits in that district “pending
resolution of the Eastern District of Virginia declaratory
judgment action.” J.A. 2511–12.
    In September 2016, the Petitioners sought IPR of the
Challenged Patents. J.A. 320–407 (Petition for IPR of the
’400 patent), 3754–835 (Petition for IPR of the ’677 patent).
The Petitioners identified seventeen RPIs pursuant to 37
C.F.R. § 42.8, including Amazon customers Expedia, Inc.
(“Expedia”) and TripAdvisor LLC (“TripAdvisor”),
J.A. 328–29, 3765–66, both of which had been sued by
GEMSA in the Eastern District of Texas, J.A. 332–33,
3768–69. The Petitioners did not identify Amazon as an
RPI. See J.A. 328–29, 3765–66. In April 2017, the PTAB
instituted two IPR proceedings (together, “the IPR proceed-
ings”), a first on claims 1 and 2 of the ’400 patent, and a
second on claims 1, 2, 6, and 7 of the ’677 patent. J.A. 1675,
6088. In September 2017, GEMSA moved to terminate the
IPR proceedings, arguing that: (1) Amazon’s Complaint for
Declaratory Judgment “bars” the IPR proceedings “under
35 U.S.C. § 315(a)(1)[,]” because Expedia and TripAdvisor
are RPIs to Amazon’s declaratory judgment action,
J.A. 2367, 6672; 5 and (2) the Petitioners violated 37 C.F.R.




    4   While GEMSA initially sued Booking in the East-
ern District of Texas based on Booking’s alleged use of the
Amazon technology, see J.A. 2465, GEMSA later admitted
that Booking was “not using” that technology, J.A. 2713,
7018.
    5   Section 315(a)(1) of Title 35 of the U.S. Code pro-
vides that “[a]n [IPR] may not be instituted if, before the
date on which the petition for such a review is filed, the
petitioner or real party in interest filed a civil action chal-
lenging the validity of a claim of the patent.”
6                GLOBAL EQUITY MANAGEMENT (SA) v. EBAY INC.




§ 42.8(b)(1) by “failing to identify” Amazon as an RPI,
J.A. 2373, 6678. 6
     In January 2018, the PTAB issued its Decision denying
GEMSA’s Motions to Terminate. See eBay I, 2018 WL
485988, at *3. The PTAB explained that “[f]or [GEMSA] to
prevail, . . . a ‘petitioner or real party in interest’ in the[]
IPR proceedings must have previously ‘filed a civil action
challenging the validity of a claim of the patent.’” Id. at *2
(quoting 35 U.S.C. § 315(a)(1)). However, as the PTAB ex-
plained, GEMSA argued only that Expedia and TripAdvi-
sor “are real parties in interest in the Virginia action,” id.,
but did not explain how their status as RPIs to the “Vir-
ginia action triggers a statutory bar to institution of these
IPR proceedings given the unambiguous language of 35
U.S.C. § 315(a)(1), which bars institution only if a peti-
tioner or RPI in these proceedings also previously filed a
civil action challenging the validity of a claim of the patent
at issue,” id. at *3. In April 2018, the PTAB issued its Fi-
nal Written Decisions finding claims 1 and 2 of the ’400 pa-
tent and claims 1, 2, 6, and 7 of the ’677 patent
unpatentable. See eBay II, 2018 WL 1881463, at *12;
eBay III, 2018 WL 1898071, at *21.
                         DISCUSSION
        I. Standard of Review and Legal Standard
    “An [IPR] may not be instituted if, before the date on
which the petition for such a review is filed, the petitioner
or real party in interest filed a civil action challenging the
validity of a claim of the patent.” 35 U.S.C. § 315(a)(1).


    6    Section 42.8(b)(1) of Title 37 of the Code of Federal
Regulations provides, in relevant part, that a “notice[]”
“[i]dentify[ing] each real party-in-interest for the [peti-
tioner]” “must be filed” with the PTAB. See 37 C.F.R. § 42.2
(defining “party” as “at least the petitioner and the patent
owner”).
GLOBAL EQUITY MANAGEMENT (SA) v. EBAY INC.                  7



The RPI inquiry at common law, which defines the mean-
ing of the term in § 315(a)(1), “seeks to ascertain who, from
a practical and equitable standpoint, will benefit from the
redress that the chosen tribunal might provide.” Applica-
tions in Internet Time, LLC v. RPX Corp., 897 F.3d 1336,
1349 (Fed. Cir. 2018) (internal quotation marks and cita-
tion omitted). “There is no ‘bright line test.’ Considera-
tions may include, for example, whether a non-party
exercises [or could exercise] control over a petitioner’s par-
ticipation in a proceeding, or whether a non-party is fund-
ing the proceeding or directing the proceeding.” Id.
at 1342–43 (quoting Office Patent Trial Practice Guide, 77
Fed. Reg. 48,756, 48,759 (Aug. 14, 2012)); see Office Patent
Trial Practice Guide, 77 Fed. Reg. at 48,759 (“A common
consideration is whether the non-party exercised or could
have exercised control over a party’s participation in a pro-
ceeding.”). A “petitioner’s initial identification of the real
parties in interest should be accepted unless and until dis-
puted by a patent owner.” Worlds Inc. v. Bungie, Inc., 903
F.3d 1237, 1243 (Fed. Cir. 2018). To dispute it, the patent
owner “must produce some evidence that tends to show
that a particular third party should be named a real party
in interest.” Id. at 1244. Whether a third party is an RPI
is a question of fact we review for substantial evidence. See
Applications in Internet Time, 897 F.3d at 1356.
II. The Record Is Insufficient to Establish that Amazon Is
             an RPI to the IPR Proceedings
     On appeal, GEMSA argues—for the first time—that
the IPR proceedings should be terminated pursuant to 35
U.S.C. § 315(a)(1) because Amazon, which GEMSA con-
tends is an RPI to the IPR proceedings, filed its Complaint
for Declaratory Judgment before the IPR petitions were
filed. See generally Appellant’s Br. 22–37. While GEMSA
asserted in its Motions to Terminate before the PTAB that
Amazon is an RPI to the IPR proceedings, see J.A. 2373,
6678, when asked where in the record GEMSA made the
argument it now raises on appeal, viz., that “Amazon is a
8                GLOBAL EQUITY MANAGEMENT (SA) v. EBAY INC.




real party-in-interest to the IPR[ proceedings] and there-
fore [§] 315(a) applies,” Oral Arg. at 7:34–7:46,
http://oralarguments.cafc.uscourts.gov/de-
fault.aspx?fl=2019-1303.mp3 (emphasis added), GEMSA
failed to provide a record cite and responded only that it
would “not . . . tell [the court] that the [motions] w[ere] as
good as [they] could be,” id. at 8:18–8:23; see id. at 7:34–
9:54. Indeed, before the PTAB, GEMSA’s termination ar-
gument focused on a different theory altogether: viz., that
Expedia and TripAdvisor, which are RPIs to the IPR pro-
ceedings, were also RPIs to Amazon’s declaratory judgment
action, thereby barring the IPR proceedings under
§ 315(a)(1). See J.A. 2367–71, 6672–76. Not surprisingly
then, the PTAB never addressed the argument GEMSA
now raises on appeal. See generally eBay I, 2018 WL
485988. “It is the general rule, . . . that a federal appellate
court does not consider an issue not passed upon below.”
Singleton v. Wulff, 428 U.S. 106, 120 (1976). “Appellate
courts are, however, given the discretion to decide when to
deviate from this general rule[.]” Interactive Gift Exp., Inc.
v. Compuserve Inc., 256 F.3d 1323, 1344 (Fed. Cir. 2001)
(citing Singleton, 428 U.S. at 121).
    GEMSA did not meet its initial burden before the
PTAB to “produce some evidence that tends to show that
[Amazon] should be named a real party in interest” to the
IPR proceedings. Worlds, 903 F.3d at 1244 (emphasis omit-
ted). Indeed, GEMSA’s mere assertion before the PTAB
that Amazon is an RPI to the IPR proceedings, see
J.A. 2373, 6678, is insufficient to properly preserve that ar-
gument, let alone the argument GEMSA now raises on ap-
peal, see Game & Tech. Co. v. Wargaming Grp. Ltd., 942
F.3d 1343, 1349 (Fed. Cir. 2019) (“Mere asser-
tions . . . without explanation or legal argument are usu-
ally insufficient [to avoid waiver].”); SmithKline Beecham
Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006)
(holding that when a party provides no developed argu-
ment on a point, we treat that argument as waived).
GLOBAL EQUITY MANAGEMENT (SA) v. EBAY INC.                 9



Accordingly, we view GEMSA’s argument on appeal as
waived.
     Even if not waived, however, we are not persuaded by
GEMSA’s argument. In fact, as it had before the PTAB, see
J.A. 2652–53, GEMSA admitted during oral argument that
“as a fact, there are no facts” in the record “that Amazon
actually wrote the IPR [petitions] or controlled the IPR
[proceedings],” Oral Arg. at 5:09–5:19; see id. at 4:27–4:50
(GEMSA admitting that it “do[es]n’t believe there is any-
thing in the record below that Amazon drafted the IPR [pe-
titions] or controlled the IPR [proceedings]”), 6:53–6:59
(GEMSA agreeing that it is “undisputed that [Amazon] had
no control over the IPR [proceedings]”), 11:41–12:05
(GEMSA agreeing that it “can’t point to a single item
of . . . Amazon’s behavior vis-à-vis . . . the IPR proceed-
ing[s]”). Indeed, GEMSA acknowledged that Amazon’s
“only . . . potential[]” relationship to the Petitioners is
based on Booking’s representation to the Eastern District
of Texas, Oral Arg. at 12:52–13:09, that Amazon “is the real
party-in-interest with respect to GEMSA’s [Amazon]-re-
lated infringement allegations” in that district, J.A. 2469.
However, Booking’s representation in that separate pro-
ceeding, as with Amazon’s earlier admission that it “[wa]s
the real party-in-interest with respect to GEMSA’s in-
fringement allegations,” J.A. 2425, was premised on facts
neither present in nor relevant to the IPR proceedings, viz.,
that Amazon “supplie[d] . . . the accused technology” and
had “the greatest interest in and ability to defend against
GEMSA’s claims,” J.A. 2411.
    GEMSA’s reliance on Amazon’s relationship with Ex-
pedia, a named RPI, fares no better. GEMSA argues, for
example, that Amazon “stood in the shoes of Expedia” vis-
à-vis the IPR proceedings pursuant to an indemnification
agreement with Expedia.       Oral Arg. at 6:06–6:27.
GEMSA’s argument is, however, belied by the very evi-
dence GEMSA relies on for support, see id. (GEMSA refer-
encing a declaration of an Expedia attorney), which
10              GLOBAL EQUITY MANAGEMENT (SA) v. EBAY INC.




explains that although Amazon’s counsel “assumed respon-
sibility for defending Expedia . . . against GEMSA’s [in-
fringement] allegations” in the Eastern District of Texas,
J.A. 2515, Amazon “did not control, fund, or direct any ac-
tivities of Expedia . . . with regard to the IPR petitions,”
J.A. 2516; see J.A. 2516 (“At no point was [Amazon] or any
other Amazon entity involved in any way in Expedia[’s] fi-
nancial contribution to the IPRs.”). In fact, the plain lan-
guage of Amazon’s indemnification agreement with
Expedia does not permit Amazon to control or otherwise
participate in the IPR proceedings, as those proceedings
were not—and, as a matter of law, could not be—within the
scope of that agreement. Compare J.A. 2576 (providing
that Amazon may “assume control of or otherwise partici-
pate in the defense” of “third-party alleg[ations]” that Am-
azon technology “infringe[s] that party’s intellectual
property rights”), with 35 U.S.C. § 311(b) (delimiting the
scope of IPR proceedings, and not including claims of pa-
tent infringement). GEMSA’s remaining arguments are
likewise unsupported by the record. Accordingly, GEMSA
did not meet its burden to “produce some evidence that
tends to show that [Amazon] should be named a real party
in interest.” Worlds, 903 F.3d at 1244 (emphasis omitted).
                       CONCLUSION
    We have considered GEMSA’s remaining arguments
and find them unpersuasive. Accordingly, the Decision of
the U.S. Patent and Trademark Office’s Patent Trial and
Appeal Board denying GEMSA’s Motions to Terminate, is
                       AFFIRMED
