Friday, June 17, 2016

GrafTech loses at the CAFC

Related to evidentiary issues:

GrafTech’s argument suffers from two flaws.

First, GrafTech’s argument asks us to reweigh the evidence, which we may not do under the substantial evidence standard of review. See In re NTP, Inc., 654 F.3d 1279, 1292 (Fed. Cir. 2011) (explaining that, under the substantial evidence standard of review, “[t]his court does not reweigh evidence on appeal, but rather determines whether substantial evidence supports the [PTAB’s] fact findings”); Nutrinova Nutrition Specialties & Food Ingredients GmbH v. Int’l Trade Comm’n, 224 F.3d 1356, 1359 (Fed. Cir. 2000) (“Even if we might have found some of the facts differently, or even if we might have drawn some inferences from the facts differently, . . . that is not the role of an appellate court.”).

Second, the record does not support GrafTech’s argument. During cross-examination, Mr. Bagot testified that he worked extensively with graphite and that his education in Britain is equivalent to a bachelor’s degree in science engineering in the United States. J.A.-1796, at 2579–80. Mr. Bagot also testified that he possesses over five years of experience in thermal management and electronics and that he has worked with flexible graphite sheets for over five years. J.A.-1796, at 2581–82. These are the qualifications that GrafTech alleged an individual should possess to qualify as an expert. See GrafTech I, 2015 WL 1385390, at *5. Thus, substantial evidence supports the PTAB’s decision to rely upon Mr. Bagot’s testimony.

Footnote 7:

In In re Cuozzo Speed Techs., LLC, the Supreme Court is considering whether the PTAB “may construe claims in an issued patent according to their broadest reasonable interpretation rather than their plain and ordinary meaning.” Brief for Petitioner at *II, In re Cuozzo Speed Techs., LLC (No. 15-446), 2016 WL 737452 (Feb. 22, 2016). Even if the Supreme Court finds that the PTAB should construe terms consistent with their plain and ordinary meaning, that holding would not change our conclusion in this case because GrafTech’s proffered construction improperly would impose an extraneous limitation on the disputed claims, as discussed below.

Note also

specification “includes both the written description and the claims” of the patent in question. In re Packard, 751 F.3d 1307, 1320 n.11 (Fed. Cir. 2014). If a specification does not assign or suggest a particular definition to a claim term, and the PTAB relies upon evidence extrinsic to the specification to construe a claim, “[w]e review [the] underlying factual determinations concerning extrinsic evidence for substantial evidence and the ultimate construction of the claim de novo.” In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1280 (Fed. Cir. 2015) (citation omitted), cert. granted sub nom., Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 890 (2016).


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