The Battle of Glendale, remembered

An article by Ebenezer Idowu , titled How the South almost prevailed in the Civil War in the [Madison, Wisc] Clarion lays out two examples in which the South almost won the Civil War.

The first (though not identified in the article) is the battle of Glendale, the next to the last day of the Seven Days battles. [Also, recall Stempel's: The Battle of Glendale: The Day the South Nearly Won the Civil War] From the article by Idowu:

One day in 1862, had things gone as planned, the Army of the Potomac would be no more. In short, the South could have won the Civil War. Lee’s plan was relatively simple: two Confederate divisions, one under Thomas “Stonewall” Jackson and another led by Theophilus Holmes would attack the Federal army from the north and west(ish), respectively, hemming in the blue-clad troops there. Then, two other divisions-one led by James Longstreet would attack the Federal troops in the middle, breaking their line of retreat in two. You can see why this was such a dangerous plan. Had it been implemented, the Army of the Potomac would have been split in half and likely destroyed, depriving the Union of its main fighting force, and giving the Confederates a clear shot at invading the Northern States.


You may not be familiar with Theophilus Holmes. This was his last field leadership position. He had the tough job of attacking the Union left, which comprised not only gunboats on the James River but also artillery being placed on Malvern Hill. One recalls what happened at Malvern Hill the next day. Lee also got rid of two other field commanders after the battle: Magruder and Huger.


Battlefields.org wrote of Glendale

To reach Harrison’s Landing, two-thirds of the Union army, some 62,000 men, would have to pass through the crossroads hamlet of Glendale on June 30. Robert E. Lee was poised to strike at that crossroads with 71,000 Confederates. He planned to fight a battle in which portions of his army would pin down Union forces north and south of the crossroads while his main attack broke through the weakened center. The Union units around Glendale were disorganized and demoralized. They fought on June 30 with more courage than cohesion. The breakdown of Lee's complex battle plan, as happened so often during the Seven Days, led to a violent struggle that severely bloodied the Federals but failed to prevent their retreat. Had Lee seized the crossroads, the Union army would have been split in half, exposed in tangled enemy country, and in danger of complete destruction. His failure left the Union escape largely assured. AND

With considerable frustration, Lee sent General James Longstreet’s division directly toward the Glendale crossroads shortly before 5:00 p.m. Although Lee had planned to bring more than 70,000 men to battle at Glendale, 25,000 were neutralized by failures amongst the Confederate leadership. AND

If the Battle of Glendale had gone differently, perhaps more according to plan, the fruitless charges into massed artillery need not have happened. Writing after the war, Confederate artillery chief Edward Porter Alexander declared that “on two occasions in the four years, we were within reach of military successes so great that we might have hoped to end the war with our independence. ... The first was at Bull Run [in] July 1861 ... This [second] chance of June 30, 1862 impresses me as the best of all.”


AmericanHistoryCentral wrote of Glendale:

By noon of the next day, most of McClellan’s army had traversed the White Oak Swamp and temporarily escaped Lee’s clutches. Still, the Yankees were not completely out of danger. As they retreated south, the Federals encountered a bottleneck where several roads converged near the village of Glendale. In addition, their command structure was fractured because McClellan was miles away aboard the gunboat Galena on the James River. The federal commanders on the front lines were left to their own resources as their leader never came close to the battlefield that day.
Lee Plans Knockout Punch The situation at Glendale afforded Lee yet another opportunity to destroy the Army of the Potomac. He devised an intricate battle plan to throw nearly his entire army at the Bluecoats before the Northerners could reach the safety of Union gunboats on the James River at Harrison’s Landing.

Lee’s plan fell apart almost immediately. Union artillery and sharpshooters harassed Jackson’s engineers, who failed to rebuild the bridge. Rather than crossing the creek at a ford that his men discovered, Jackson reportedly lay down under a tree and went to sleep while his soldiers engaged in a fruitless artillery duel. Jackson’s men were never a factor in the ensuing battle at Glendale. Trees that the Federals had felled across the Charles City Road stymied Huger’s advance. In what facetiously became known as the Battle of the Axes, Huger wasted hours having his men blaze a new road through the adjacent forest and failed to strike the Union center as planned.


s Hill and Longstreet awaited Huger’s arrival, federal artillery began shelling the center of Lee’s line at approximately 2 p.m. Return fire from the Rebels failed to silence the Yankee guns. Lee’s window for success began to close as the afternoon waned. With nightfall only a few hours away, Lee ordered Hill and Longstreet to begin their assault on the center of the Union rearguard despite the absence of Jackson and Huger.


The assault went well initially. The Rebels punctured the Union line and drove the Bluecoats back to the edge of Frayser’s Farm with a strike that featured fierce hand-to-hand combat. Without support from Jackson and Huger, however, the attack petered out. Reinforcements plugged the gap in the Yankee line and prevented the Confederates from capturing the intersection. The Federals still held their line of retreat. Meanwhile, at the southern end of the line, Holmes made no progress. Fitz John Porter’s division, supported by Union gunboats on the James River, thwarted a Confederate assault against the federal left. After the first repulse, Holmes chose not to try again.






Phil Kearny of New Jersey also recognized the significance of Glendale.
Previously, he had stated (as noted in wikipedia);

"I'm a one-armed Jersey son-of-a-gun, follow me!" The general led the charge with his sword in hand, reins in his teeth. He is noted for urging his troops forward by declaring, "Don't worry, men, they'll all be firing at me!"

The second instance that the South "almost won" was at Gettysburg. The author wrote:

After the second day of the Battle of Gettysburg, in which Robert E. Lee’s plan to break the Union defense lines from the sides had failed, Lee devised yet another plan to break the Union lines from. This time, he would try the center. First, Confederate artillery would bombard the Union lines at Cemetery Ridge. Then, an infantry unit led by George Pickett would attack the weakened Union lines, breaking them. You can probably guess what happened: things did not go well. The Confederate cannons failed to do the necessary damage to the Northern Army, and the Yankees’ cannons, combined with close-range fighting, made mincemeat of the Rebels.

ImmunoGen prevails in 145 action. Errors?

This case involves a civil action to obtain a patent under 35 U.S.C. § 145. Appellee [sic: ?] ImmunoGen, Inc.’s (“ImmunoGen”) U.S. Application No. 14/509,809 (“the ’809 Application”) describes methods of administering the immunoconjugate mirvetuximab for the treatment of cancer. After the Patent Trial and Appeal Board (“Board”) of the United States Patent and Trademark Office (“USPTO”) affirmed the examiner’s rejection of the pending claims for obviousness and obviousness-type double patenting, ImmunoGen filed its § 145 suit in the Eastern District of Virginia. The district court determined on summary judgment that the claims of the ’809 Application are “fatally indefinite and fatally obvious” as a matter of law. ImmunoGen, Inc. v. Iancu, 523 F. Supp. 3d 773, 799 (E.D. Va. 2021). ImmunoGen appeals from the summary judgment. We have jurisdiction under 28 U.S.C. § 1295(a)(1). In its analysis, the district court resolved numerous factual disputes against non-movant [sic: ?] ImmunoGen, an error that is fatal to its ultimate ruling. We therefore vacate the grant of summary judgment and remand for proceedings consistent with this opinion.


Of note


Although mirvetuximab showed promise as a cancer treatment, Phase 1 clinical trials revealed it can have severe ocular side effects when administered at a dose of 7 mg per kg of the patient’s total body weight (“TBW”). ImmunoGen determined that a dose of 6 mg per kg of the patient’s adjusted ideal body weight (“AIBW”) successfully maintains exposure of the drug at the therapeutically effective level while keeping it below the ocular toxicity threshold. It is undisputed that AIBW dosing had not previously been used for mirvetuximab, let alone any other immunoconjugate.


Of the law:


Summary judgment is appropriate when, drawing all justifiable inferences in favor of the non-moving party, there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). We review a district court’s summary judgment determination under the law of the regional circuit, see Syngenta Crop Prot., LLC v. Willowood, LLC, 944 F.3d 1344, 1355 (Fed. Cir. 2019), which, here, is the Fourth Circuit. “The Fourth Circuit reviews the grant of a motion for summary judgment de novo, viewing all evidence in the light most favorable to the non-moving party.” Id. (citing cases). Indefiniteness and obviousness are both issues of law that may rely on underlying factual findings, such as the knowledge, level, or understanding of those skilled in the art. See BASF Corp. v. Johnson Matthey Inc., 875 F.3d 1360, 1365 (Fed. Cir. 2017) (indefiniteness); Teva Pharms. USA, Inc. v. Sandoz, Inc., 789 F.3d 1335, 1342 (Fed. Cir. 2015) (same); Acorda Therapeutics, Inc. v. Roxane Lab’ys, Inc., 903 F.3d 1310, 1328 (Fed. Cir. 2018) (obviousness). Obviousness may also rely on factual findings regarding motivation to combine, reasonable expectation of success, and secondary considerations of nonobviousness. Acorda, 903 F.3d at 1328.



An argument NOT made by the Board


Although neither the examiner nor the Board rejected the claims of the ’809 Application for indefiniteness, the USPTO (as permitted by statute) argued in the § 145 action that the term “AIBW” is indefinite. The district court agreed, concluding that the ’809 Application fails to define IBW or AIBW in such a way that a skilled artisan would be informed, with reasonable certainty, as to the scope of the invention.3 ImmunoGen, 523 F. Supp. 3d at 787, 799.



From footnote 5

The district court incorrectly concluded that Example 4 plays no role in the indefiniteness inquiry. See, e.g., Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1373 (Fed. Cir. 2014) (“We recognize that a patent which defines a claim phrase through examples may satisfy the definiteness requirement.”); Enzo Biochem, Inc. v. Applera Corp., 599 F.3d 1325, 1336 (Fed. Cir. 2010) (holding that the phrase “not interfering substantially” is sufficiently definite because a skilled artisan could use “the examples in the specification to determine whether interference with hybridization is substantial”).

For each of these examples, the district court erred in concluding that there is no disputed question of material fact. This error repeats across its other factual findings, including those relating to motivation to combine, reasonable expectation of success, and secondary considerations.


CONCLUSION For the reasons stated above, we hold that the district court erred in granting summary judgment. We therefore vacate the district court’s determination that the pending claims of the ’809 Application are indefinite and would have been obvious, and remand for proceedings consistent with this opinion.

Biogen loses to Mylan in request for rehearing over issues in patent for multiple sclerosis [MS] drug related to fumarates

Biogen International BmbH and Biogen MA, Inc. filed a combined petition for panel rehearing and rehearing en banc. IT IS ORDERED THAT: The petition for panel rehearing is denied. The petition for rehearing en banc is denied. Note XTian's comment at PatentlyO, about "proving a negative":

MPEP 2121 Prior art is presumed enabling. “When the reference relied on expressly anticipates or makes obvious all of the elements of the claimed invention, the reference is presumed to be operable.” Not just what is claimed, but whatever is written into the specification. It is per se enabled. It is up to the applicant to show the prior art is non-enabling, i.e., to prove a negative. Moreover, “proof of efficacy is not required for a prior art reference to be enabling for purposes of anticipation.” Impax Labs. Inc. v. Aventis Pharm . Inc., 468 F.3d 1366, 1383, 81 USPQ2d 1001, 1013 (Fed. Cir. 2006). See also MPEP § 2122. In this instance, Biogen’s patent with support in the specification claiming the specific dose of DMF to treat MS is enabled for prior art purposes, but not sufficiently enabled to be claimed. This case also raises further questions: Why wasn’t post filing data allowed to rebut the rejection? See Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313 (Fed. Cir. 2003). Finally, how does this decision affect prophetic examples? The litigators should just thank the Fed Cir. for their part in ensuring their job security.

Dissent in the Mylan case (by Lourie, joined by Newman and Moore):

Appeal from the United States District Court for the Northern District of West Virginia in No. 1:17-cv-00116- IMK-JPM, Judge Irene M. Keeley. ______________________ LOURIE, Circuit Judge, with whom MOORE, Chief Judge, and NEWMAN, Circuit Judge, join, dissenting from the denial of the petition for rehearing en banc. On March 2, 2010, this court sitting en banc in Ariad Pharms., Inc. v. Eli Lilly & Co., reaffirmed the proposition that “written description” is a requirement that exists in the patent statute separate and apart from any other requirements for patentability. 598 F.3d 1336, 1351 (Fed. Cir. 2010). We stated very clearly that “the hallmark of written description is disclosure.” Id. The test for written description “requires an objective inquiry into the four corners of the specification from the perspective of a person of ordinary skill in the art.” Id. “Based on that inquiry”— and not based on other considerations—“the specification must describe an invention understandable to that skilled artisan and show that the inventor actually invented the invention claimed.” Id.


We have found lack of written description in a variety of contexts and circumstances. For example, we found a lack of written description when a patent specification described only rat insulin-encoding cDNA but the claimed microorganism encompassed human insulin-encoding CDNA. See Regents of Univ. of Cal. v. Eli Lilly & Co., 119 F.3d 1559, 1568 (Fed. Cir. 1997). We found a lack of written description when a patent specification identified only one possible location for controls on a reclining sofa but the claim recited the controls in a different location. See Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473, 1479–80 (Fed. Cir. 1998). In another case, we found a lack of written description when claims were directed to a method comprising administering a compound to achieve a particular result but the specification failed to disclose any compounds that could be used in the claimed method. See Univ. of Rochester v. G.D. Searle & Co., 358 F.3d 916, 927 (Fed. Cir. 2004). We also found a lack of written description when a specification disclosed small numbers of species of antibodies that did not reasonably represent the breadth of antibodies encompassed by the claimed genus. See Abbvie Deutschland GmbH & Co. v. Janssen Biotech, Inc., 759 F.3d 1285, 1300–01 (Fed. Cir. 2014). These decisions, and many more like them, are supported by case law dating back to before this court existed. See, e.g., In re Ruschig, 379 F.2d 990, 995 (C.C.P.A. 1967) (finding that the claimed compound was not described in the specification). Indeed, these decisions are supported by Supreme Court precedent dating back almost two centuries when the Court found that Samuel Morse’s eighth patent claim was invalid because “he claims an exclusive right to use a manner and process which he has not described and indeed had not invented, and therefore could not describe But in all that history, this case, in which every claim limitation is expressly described in the disclosure of the patent specification, is at the farthest end of the spectrum of cases where written description has not been found. It is an outlier. Today, by denying rehearing en banc, the judges of this court have let a panel majority opinion stand that imports extraneous considerations into the written description analysis and blurs the boundaries between the written description requirement and the other statutory requirements for patentability. In doing so, the court has contributed to the muddying of the written description requirement. Accordingly, I respectfully dissent from that denial. I Biogen International GmbH (“Biogen”) owns U.S. Patent 8,399,514 (“the ’514 patent”). Mylan Pharmaceuticals Inc. (“Mylan”) contended that the claims of the ’514 patent are invalid for lack of written description support in the specification. In asserting that challenge, Mylan bore the burden of proving by clear and convincing evidence that the disclosure of the ’514 patent specification failed to demonstrate to a person of ordinary skill in the art that the inventors invented what is claimed. The district court found that Mylan met its burden. Biogen Int’l GmbH v. Mylan Pharms. Inc., No. 1:17-cv-116, 2020 WL 3317105 (N.D. W. Va. June 18, 2020) (“District Court Decision”). The panel majority affirmed. See Biogen Int’l GMBH v. Mylan Pharms. Inc., 18 F.4th 1333 (Fed. Cir. 2021) (“Panel Maj. Op.”). I begin by explaining why it should have reversed and why this court should have granted the petition for rehearing en banc.


Claim 1:


A method of treating a subject in need of treatment for multiple sclerosis comprising orally administering to the subject in need thereof a pharmaceutical composition consisting essentially of (a) a therapeutically effective amount of dimethyl fumarate, monomethyl fumarate,1 or a combination thereof, and (b) one or more pharmaceutically acceptable excipients, wherein the therapeutically effective amount of dimethyl fumarate, monomethyl fumarate, or a combination thereof is about 480 mg per day.



In evaluating whether the written description requirement has been met with respect to claim 1, we must look to what is disclosed in the patent specification. See, e.g., D Three Enters., LLC v. SunModo Corp., 890 F.3d 1042, 1052 (Fed. Cir. 2018) (“[A]dequate written description . . . asks what is disclosed.”); Ariad, 598 F.3d at 1351 (“[T]he hallmark of written description is disclosure.”). The ’514 patent sets forth a number of embodiments, including five methods. Most relevant here, “method 4” includes “methods of treating a neurological disease.” ’514 patent at col. 8 ll. 35–36. And, pointedly, the title of the patent is “Treatment for Multiple Sclerosis.”

Whatever shortcomings exist in this unfocused patent specification, failure of written description with respect to claim 1 is not one of them.


The issues for the dissent:


As a general matter, the panel majority and the district court erred by analyzing factual and legal considerations that are not properly contained within the written description analysis.

More specifically, I identify four individual points of error that the en banc court should have corrected. First, the panel majority and the district court overly emphasized unclaimed disclosures in the specification. Second, they erroneously imposed a heightened burden on the patentee to show that the specification proves efficacy. Third, they imported legal factors from other patentability requirements. And fourth, they were influenced by irrelevant extrinsic evidence. I will address each of these points of error in turn.

Amneal wins at CAFC over an appeal by ALMIRALL

The outcome:


Almirall, LLC (“Almirall”) appeals from the final written decision of the U.S. Patent and Trademark Office Patent Trial and Appeal Board (the “Board”) holding that claims 1–8 of U.S. Patent 9,517,219 (the “’219 patent”) would have been obvious over the cited prior art at the time the alleged invention was made.1 See Amneal Pharms. LLC v. Almirall, LLC, No. IPR2019-00207, 2020 WL 2833274 (P.T.A.B. May 29, 2020) (“Decision”). For the reasons provided below, we affirm.


Of the technology


Adapalene is a compound used for treating dermatological conditions, sometimes in combination with dapsone. See Decision at *18. The ’219 patent includes 62 generalized composition embodiments, ’219 patent, col. 6 l. 58– col. 12 l. 40, and eight specific example formulations, id. at col. 12 l. 42–col. 15 l. 33. Several of the examples are described as including adapalene. Independent claims 1 and 6 read as follows: 1. A method for treating a dermatological condition selected from the group consisting of acne vulgaris and rosacea comprising administering to a subject having the dermatological condition selected from the group consisting of acne vulgaris and rosacea a topical pharmaceutical composition comprising: about 7.5% w/w dapsone; about 30% w/w to about 40% w/w diethylene glycol monoethyl ether; about 2% w/w to about 6% w/w of a polymeric viscosity builder comprising acrylamide/sodium acryloyldimethyl taurate copolymer; and water; wherein the topical pharmaceutical composition does not comprise adapalene.


The issues:

Almirall raises two challenges on appeal. First, Almirall contends that the Board erred in presuming obviousness based on overlapping ranges. Second, Almirall argues that the Board’s obviousness determinations were unsupported by substantial evidence. We review the Board’s legal determinations de novo, In re Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), but we review the Board’s factual findings underlying those determinations for substantial evidence, In re Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000). A finding is supported by substantial evidence if a reasonable mind might accept the evidence as adequate to support the finding. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

(...)

“A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) (citing In re Geisler, 116 F.3d 1465, 1469 (Fed. Cir. 1997)); see also E.I. du Pont de Nemours & Co. v. Synvina C.V., 904 F.3d 996, 1006 (Fed. Cir. 2018); Iron Grip Barbell Co. v. USA Sports, Inc., 392 F.3d 1317, 1322 (Fed. Cir. 2004). “The point of our overlapping range cases is that, in the absence of evidence indicating that there is something special or critical about the claimed range, an overlap suffices to show that the claimed range was disclosed in—and therefore obvious in light of—the prior art.” E.I. du Pont, 904 F.3d at 1008. A presumption of obviousness does not shift the burden of persuasion to the patentee to prove nonobviousness, but a presumption establishes that, “absent a reason to conclude otherwise, a factfinder is justified in concluding that a disclosed range does just that—discloses the entire range.” Id.


(...)


But even if we agreed with Almirall that the presumption does not apply in this case, the outcome would be the same. Ultimately, despite Almirall’s attempts to argue otherwise, this case does not depend on overlapping ranges. It is simply a case of substituting one known gelling agent for another


(...)

Amneal responds that substantial evidence supports the Board’s finding that Garrett effectively teaches the negative adapalene claim limitation. We agree with Amneal. Almirall’s argument is contrary to our precedent. “[A] reference need not state a feature’s absence in order to disclose a negative limitation.” AC Techs., S.A. v. Amazon.com, Inc., 912 F.3d 1358, 1367 (Fed. Cir. 2019). Instead, it was reasonable for the Board to find that, in the context of Garrett, a skilled artisan would recognize that the reference discloses a complete formulation—excluding the possibility of an additional active ingredient. See, e.g., Novartis Pharms. Corp. v. Accord Healthcare, Inc., 21 F.4th 1362, 1373 (Fed. Cir. 2022) (recognizing that for negative limitations, “the disclosure must be read from the perspective of a person of skill in the art”). It is undisputed that Garrett discloses dapsone formulations that lack adapalene. The Board thus did not err in concluding that Garrett discloses the negative adapalene claim limitation.


(...)


We agree with Amneal. A finding of a reasonable expectation of success does not require absolute predictability of success. See OSI Pharms., LLC v. Apotex Inc., 939 F.3d 1375, 1385 (Fed. Cir. 2019). The Board’s reasonable expectation of success analysis is supported by substantial evidence. The Board credited Amneal’s expert’s testimony that a person of ordinary skill would have understood that use of Nadau-Fourcade’s A/SA gelling agents in Garrett’s formulation would have been routine and predictable because the agents were known for use in topical compositions with water insoluble drugs. Furthermore, the Board found that a person of ordinary skill would not have expected any incompatibilities. The Board analyzed the record evidence and found that Carbopol® and Sepineo® were recognized to be interchangeable and equivalent gelling agents that could be used in topical formulations containing dapsone, and that they could be used in the same concentration range. We are therefore not persuaded that the Board erred in analyzing the evidence provided by Amneal and its impact on whether a skilled artisan would have had a reasonable expectation of success in combining these prior art teachings to achieve the claimed invention.

Life in Bridgewater NJ on 5 March 2022

Gas is running at 3.99 per gallon, regular.

The police handling of the Bridgewater Mall incident is on the cover of the Courier News.

Cameron v. Nitro: everyone loses on appeal to the CAFC of a fracking case

The outcome:


Cameron International Corporation (Cameron) owns U.S. Patent 9,932,800 (’800 patent). In March 2019, Nitro Fluids, L.L.C. (Nitro) filed a petition for inter partes review of claims 1, 3–5, 7, 8, 11–14, 17, and 18, among others. The Patent Trial and Appeal Board (Board) determined that claims 1, 3, 4, 7, 8, and 17 were anticipated by U.S. Patent Publication No. 2009/0114392 (Tolman) and that claim 5 was unpatentable as obvious in view of Tolman and U.S. Patent Publication No. 2009/0194273 (Surjaatmadja). Nitro Fluids, L.L.C. v. Cameron Int’l Corp., IPR2019-00852, 2020 WL 5239811, at *25 (P.T.A.B. Sept. 2, 2020) (Final Written Decision). The Board upheld the patentability of claims 11–14 and 18. Id. Cameron appeals with respect to the claims the Board found to be unpatentable and Nitro cross-appeals with respect to the claims the Board upheld. For the following reasons, we affirm.


Thus, the Board and CAFC concluded claims 11-14 and 18 were patentable, but the others not. The CAFC affirmed the Board. The technology is fracking:

The patented technology relates to infrastructure for hydraulic fracturing. To extract natural gas using hydraulic fracturing, fracturing fluid is pumped into a pre-drilled well at high pressures to “fracture” geological formations that contain natural gas. ’800 patent col. 1 ll. 30–42

Cameron's arguments

Cameron’s appeal presents three main arguments. First, Cameron challenges the Board’s construction of “fracturing manifold,” arguing that the Board should have required that element to “direct fracturing fluid supply to individual wells.” Appellant’s Br. 62. Second, Cameron argues that the Board improperly declined to construe “fracturing tree” as a type of tree “installed specifically for the fracturing process” that can “withstand the highly-abrasive, high-pressure fracturing process.” Id. at 65–66. Third, Cameron argues that Tolman cannot anticipate any of the claims because Tolman does not clearly, specifically, and unambiguously disclose “one and only one rigid fluid pathway.” See, e.g., id. at 36. Cameron contrasts prior art “frac-iron” systems—where multiple fluid lines converge on a fracturing tree—with the patented invention, which replaces the multiple flow paths with one. Id. at 43, 49. Tolman, Cameron argues, must be the former. Id. at 46 (comparing Tolman’s Figure 2 to a prior art “frac-iron” system).


Of the prior art:

We review the Board’s findings regarding the disclosures of prior art references, including whether the prior art sufficiently enables the relevant disclosures, for substantial evidence. Raytheon Techs. Corp. v. Gen. Elec. Co., 993 F.3d 1374, 1380 (Fed Cir. 2021); Polaris Indus., Inc. v. Arctic Cat, Inc., 882 F.3d 1056, 1064 (Fed. Cir. 2018). “A finding is supported by substantial evidence if a reasonable mind might accept the evidence to support the finding.” Genentech, Inc. v. Hospira, Inc., 946 F.3d 1333, 1337 (Fed. Cir. 2020).

AND

Second, we defer to the Board’s factual findings regarding what a reference discloses and whether it is ambiguous. See Wasica Fin. GmbH v. Cont’l Auto. Sys., Inc., 853 F.3d 1272, 1284 (Fed. Cir. 2017) (affirming the Board’s finding that a reference was too ambiguous to anticipate a claim where record evidence supported the conclusion). Here, the Board considered Tolman’s disclosures, contemporaneous references, expert testimony, and attorney argument and concluded that Tolman “clearly shows” a single fluid conduit and discloses that the conduit can be rigid. Final Written Decision, at *12. Based on the record, the Board’s conclusion is reasonable and supported by substantial evidence. Additionally, we similarly reject Cameron’s related enablement argument because prior art published patent applications are presumed enabling and Cameron does not present any evidence or meaningful argument as to why a skilled artisan could not make and use Tolman’s disclosed single-line system. See Impax Lab’ys, Inc. v. Aventis Pharms., Inc., 545 F.3d 1312, 1316 (Fed. Cir. 2008) (reaffirming that an anticipating prior art patent is presumptively enabled); In re Antor Media Corp., 689 F.3d 1282, 1288 (Fed. Cir. 2012) (extending the presumption to printed publications); Apple Inc. v. Corephotonics, Ltd., 861 F. App’x 443, 449 (Fed. Cir. 2021) (“It is well-established that prior art patents and printed publications . . . are presumed enabling.”). We therefore affirm the Board’s decision regarding the disclosures of the Tolman reference, and, by extension, the Board’s finding that Tolman anticipates claims 1, 3, 4, 7, 8, and 17 and, in combination with Surjaatmadja, renders obvious claim 5. Final Written Decision, at *25