Case: 21-2057 Document: 40 Page: 1 Filed: 08/11/2022
United States Court of Appeals
for the Federal Circuit
______________________
LSI CORPORATION, AVAGO TECHNOLOGIES U.S.
INC.,
Appellants
v.
REGENTS OF THE UNIVERSITY OF MINNESOTA,
Appellee
______________________
2021-2057
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2017-
01068.
______________________
Decided: August 11, 2022
______________________
KRISTOPHER L. REED, Kilpatrick Townsend & Stockton
LLP, Dallas, TX, argued for appellants. Also argued by
EDWARD JOHN MAYLE, Denver, CO.
PATRICK JOSEPH MCELHINNY, K&L Gates LLP, Pitts-
burgh, PA, argued for appellee. Also represented by MARK
G. KNEDEISEN, ANNA SHABALOV, CHRISTOPHER MICHAEL
VERDINI; THEODORE J. ANGELIS, Seattle, WA.
______________________
Before DYK, REYNA, and HUGHES, Circuit Judges.
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2 LSI CORPORATION v.
REGENTS OF THE UNIVERSITY OF MINNESOTA
DYK, Circuit Judge.
The Regents of the University of Minnesota (“UMN”)
sued LSI Corporation and Avago Technologies U.S. Inc.
(collectively, “LSI”) for infringement of
U.S. Patent No.
5,859,601 (“’601 patent”) in the District of Minnesota. LSI
petitioned the Patent Trial and Appeal Board (“Board”) for
inter partes review of the ’601 patent, and the Board insti-
tuted review on claims 13, 14, and 17 on anticipation theo-
ries based on two prior-art references, U.S. Patent Nos.
5,392,270 (“Okada”) and 5,731,768 (“Tsang”). The Board
concluded that claim 13 was unpatentable in view of Okada
and that claims 14 and 17 were not shown to be unpatent-
able in view of either reference. In finding that LSI failed
to show unpatentability of claims 14 and 17, the Board held
that LSI failed to timely raise its theory that Tables 8 and
9 of Okada anticipate claims 14 and 17 and that, in any
event, Tables 8 and 9 did not anticipate. As to Tsang, the
Board held that the reference was not prior art because it
was not “by another” under
35 U.S.C. § 102(e). 1 LSI ap-
peals the Board’s decision as to claims 14 and 17. We af-
firm.
BACKGROUND
I
The ’601 patent addresses error rates related to record-
ing data to computer storage devices. Some input data se-
quences contain “error-prone binary data patterns.” ’601
patent, col. 2, ll. 40–46. Dr. Jaekyun Moon, a UMN profes-
sor at the time, and Dr. Barrett J. Brickner, a UMN grad-
uate student at the time, developed maximum transition-
run (“MTR”) coding to reduce these error-prone patterns,
and their work became the basis for the ’601 patent.
Id.
MTR coding as described in the ’601 patent involves
1 Because the ’601 patent was filed before the Amer-
ica Invents Act (“AIA”), we use the pre-AIA statute.
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receiving sequences of input data blocks with error-prone
patterns and converting (i.e., encoding) each input data
block into a corresponding “codeword” that avoids the er-
ror-prone patterns.
Id. at col. 4, l. 46–col. 5, l. 20. Dr. Moon
and Dr. Brickner understood that the number of consecu-
tive bit transitions in the input data sequence, i.e., binary
bit transitions from 0 to 1 or 1 to 0, was an important
source of error. Thus, MTR coding as described in the ’601
patent converts input data blocks into codewords that (1)
“impose[] a limit on the maximum number of consecutive
transitions” that are written to a computer storage device,
id. at col. 2, ll. 59–61, and (2) impose a limit on the maxi-
mum number of non-transitions,
id. at col. 3, ll. 16–17; col.
10, ll. 47–59.
These two limitations on bit transitions are embodied
in the claims with the ‘j’ constraint limiting the number of
consecutive transitions and the ‘k’ constraint limiting the
number of consecutive non-transitions. Independent claim
13 states:
A method for encoding m-bit binary datawords into
n-bit binary codewords in a recorded waveform,
where m and n are preselected positive integers
such that n is greater than m, comprising the steps
of:
receiving binary datawords; and
producing sequences of n-bit codewords;
imposing a pair of constraints (j;k) on the encoded
waveform;
generating no more than j consecutive transitions
of said sequence in the recorded waveform such
that j≧2; and
generating no more than k consecutive sample pe-
riods of said sequences without a transition in the
recorded waveform.
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4 LSI CORPORATION v.
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Id. at col. 10, ll. 47–59. Dependent claim 14 narrows claim
13 with the limitation, “wherein the consecutive transition
limit is defined by the equation 2≦j<10.”
Id. at col. 10, ll.
60–61. Claim 17 narrows claim 14 with limitations di-
rected to an additional format for representing data and
transitions.
Id. at col. 11, ll. 1–6. Both parties treat claim
17 as standing or falling with claim 14, so we focus only on
claim 14.
II
LSI contends that claim 14 in the ’601 patent is antici-
pated by Okada and Tsang. Okada teaches converting in-
put data blocks using two rules that eliminate the
occurrence of certain patterns in the input data blocks for
use with optical disks. Okada, col. 3, ll. 36–68. Okada’s
Rule 1 provides, “A pattern after conversion consists of at
least one ‘0’ and an even number of consecutive ‘1’.”
Id. at
col. 3, ll. 64–65. Okada’s Rule 2 provides, “A pattern after
conversion includes a section consisting of ‘01010’ and a
section consisting of at least one ‘0’ or an even number of
consecutive ‘1’.”
Id. at col. 3, ll. 66–68. Okada’s Tables 1–9
include an example mapping of all 8-bit input data blocks
to 13-bit converted output data blocks based on Okada’s
two rules.
Id. at col. 4, ll. 1–9. LSI originally contended
that Okada’s disclosure of Rule 2 itself anticipates claims
14 and 17 of the ’601 patent, but later argued instead that
Tables 8 and 9 were embodiments that anticipate claims
14 and 17.
III
LSI’s second theory of anticipation relies on Tsang, and
particularly those portions of Tsang disclosed earlier in
what is known as the Seagate Annual Report. Some back-
ground on the ’601 patent is necessary to understand the
Tsang anticipation theory. On September 26, 1995, Dr.
Moon and Dr. Brickner submitted the Seagate Annual Re-
port about MTR coding to Seagate, an industry collaborator
on their research. The material in the Seagate Annual
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Report was later embodied in the ’601 patent. It is not clear
whether the Seagate Annual Report was publicly available
before the ’601 patent’s priority date.
In both the Seagate Annual Report and the ’601 patent,
Dr. Moon and Dr. Brickner describe MTR coding that takes
an input sequence of binary data and encodes or converts
it in a way that eliminates error-prone patterns of consec-
utive bit transitions before saving or storing the encoded
sequence in a computer storage device. See ’601 patent, col.
1, ll. 16–55; col. 2, l. 40–col. 3, l. 17; J.A. 3550–57. MTR
coding as described in both the ’601 patent and the Seagate
Annual Report includes the two limitations on consecutive
bit transitions and non-transitions. ’601 patent, col. 2, ll.
59–61; col. 3, ll. 16–17; col. 10, ll. 47–59; J.A. 3553, 3556.
To accomplish the encoding and achieve the two limitations
on transitions and non-transitions, the ’601 patent and the
Seagate Annual Report describe a “fixed-length block
code[]” that maps every 4-bit input data block to a unique
5-bit codeword. ’601 patent, col. 4, l. 61–col. 5, l. 18; see
J.A. 3553, 3556–57. MTR coding that maps 4-bit input
data blocks to 5-bit codewords is a rate 4/5 code.
Here, there is no contention that the Seagate Annual
Report can be relied upon as prior art to the ’601 patent
since Dr. Moon and Dr. Brickner are both listed as the only
authors of the Seagate Annual Report and as the only in-
ventors of the ’601 patent. Because the Seagate Annual
Report has the same authors, it is not “by another” under
§ 102 even if it were publicly available before the priority
date. Rather, LSI relies on another prior-art patent,
Tsang, to anticipate claims 14 and 17.
About four months after receiving the Seagate Annual
Report from Dr. Moon and Dr. Brickner and before the ear-
liest filing date of the ’601 patent (April 5, 1996), Dr. Kin-
hing P. Tsang, an employee at Seagate, filed an application
on January 31, 1996, that would later mature into the
Tsang patent. Dr. Moon and Dr. Brickner were not listed
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6 LSI CORPORATION v.
REGENTS OF THE UNIVERSITY OF MINNESOTA
as inventors on the Tsang patent. Under § 102(e), the
Tsang patent is prior art on its face to the ’601 patent be-
cause Dr. Tsang is the only listed inventor on the patent
and is not a listed inventor on the ’601 patent. The Tsang
patent described MTR coding as previously existing in the
Background section of the patent and directly referenced
the Seagate Annual Report. Tsang, col. 2, ll. 22–44.
Based on the description of MTR coding by Dr. Moon
and Dr. Brickner in the Seagate Annual Report, Tsang re-
vised the MTR coding to create a specific codeword strategy
that selects the codeword for a given dataword depending
on the previous dataword-codeword mapping, an invention
not disclosed or specifically claimed in the ’601 patent. 2
This type of system is known as a state-dependent system,
and it allowed Tsang to implement MTR coding with higher
input-output rates, which allows for more efficient use of
storage. For example, Tsang described and claimed an im-
plementation with 6-bit input data blocks and 7-bit output
codewords, i.e., a 6/7 rate, instead of the 4/5 rate described
in the Seagate Annual Report and the ’601 patent. Dr.
Tsang described a specific implementation that built on
MTR coding that limited consecutive transitions and non-
transitions as described by Dr. Moon and Dr. Brickner in
the Seagate Annual Report.
IV
On August 25, 2016, UMN sued LSI in the District of
Minnesota for infringement of the ’601 patent. The case
was later transferred to the Northern District of California
under
28 U.S.C. § 1406(a). Regents of the Univ. of Minn. v.
2 Because we affirm the Board’s conclusion that
Tsang’s specific embodiments are not relevant to claims 14
and 17 for anticipation, we need not decide whether the
claims of the ’601 patent are sufficiently broad to cover
Tsang’s specific embodiments.
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REGENTS OF THE UNIVERSITY OF MINNESOTA
LSI Corp., No. 16-CV-2891 (WMW/SER),
2018 WL
6497034, at *4 (D. Minn. Feb. 1, 2018).
Within one year of the filing of the infringement action,
on March 10, 2017, LSI petitioned for inter partes review
of the ’601 patent. Before the Board, UMN moved to dis-
miss LSI’s petition on the ground of state sovereign im-
munity. The Board denied UMN’s motion to dismiss, but
it stayed proceedings on the merits while UMN appealed.
This court affirmed the Board’s sovereign-immunity deci-
sion, holding that “state sovereign immunity does not apply
to these proceedings.” Regents of the Univ. of Minn. v. LSI
Corp.,
926 F.3d 1327, 1330 (Fed. Cir. 2019). The Supreme
Court denied UMN’s certiorari petition, and thereafter the
Board lifted the stay.
In the ensuing proceedings before the Board, UMN dis-
claimed all challenged claims except for method claims 13,
14, and 17. The Board instituted review on the three
claims, on LSI’s Ground 1, alleging anticipation under
35
U.S.C. § 102(b) by Okada, and Ground 2, alleging anticipa-
tion under § 102(e) by Tsang.
On April 14, 2021, the Board issued its final written
decision finding claim 13 anticipated by Okada (a determi-
nation that UMN does not contest on appeal). However,
the Board determined that LSI had not shown that claims
14 and 17 were unpatentable in view of Okada or Tsang. It
concluded that Okada’s Rule 2 did not anticipate claims 14
and 17 because the imposed limit on consecutive transi-
tions (the ‘j’ constraint in the challenged claims) from
Okada is not less than 10 as required by the limitation in
claim 14 that ‘j’ satisfy 2≦j<10. The Board determined that
LSI first raised a new theory—that Okada’s partial map-
pings in Tables 8 and 9 independently anticipate claims 14
and 17—at oral argument and that this theory was “im-
proper as untimely.” J.A. 31. The Board then explained
that, “[e]ven if [LSI]’s argument were timely,” LSI had
failed to explain “how each of Tables 8 and 9,
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independently, comprises a complete embodiment such
that Tables 8 and 9, by themselves, and without any rear-
rangement, anticipate.” J.A. 31–32.
Turning to the Tsang ground, the Board determined
that Tsang is not “by another” under § 102(e). 3 The Board
found that, despite citing to various portions of Tsang,
LSI’s “[p]etition relies solely on material disclosed in the
Seagate Annual Report for anticipation of the challenged
claims.” J.A. 37–38 (emphasis added). For example, the
petition explained how “Dr. Tsang set forth a key finding
from Seagate’s research—a finding previously presented in
the Seagate Annual Report: . . . ‘The upper bound of the
MTR=2 code rate [imposing a limit of two on consecutive
bit transitions] in which k=∞ has been found to be 0.8791
as indicated in the Seagate Annual Report.’” J.A. 132
(quoting Tsang, col. 2, ll. 36–38). Thus, the Board con-
cluded that LSI had “not satisfied its burden to prove the
portions of Tsang relied upon for anticipation represent the
work of another to qualify as prior art under § 102(e).”
J.A. 44.
LSI appeals. We have jurisdiction under
28 U.S.C.
§ 1295(a)(4).
3 Section 102(e) provides:
A person shall be entitled to a patent unless—
(e) the invention was described in—(1) an applica-
tion for patent, published under section 122(b), by
another filed in the United States before the inven-
tion by the applicant for patent or (2) a patent
granted on an application for patent by another
filed in the United States before the invention by
the applicant for patent . . . .
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DISCUSSION
We review the Board’s legal determinations de novo
and any underlying factual findings for substantial evi-
dence. Duncan Parking Techs., Inc. v. IPS Grp., Inc.,
914
F.3d 1347, 1357 (Fed. Cir. 2019). “[W]hether a reference is
a work of others . . . is, like that of inventorship, a question
of law based on underlying facts.” Allergan, Inc. v. Apotex
Inc.,
754 F.3d 952, 969 (Fed. Cir. 2014) (citing Ethicon, Inc.
v. U.S. Surgical Corp.,
135 F.3d 1456, 1460 (Fed. Cir.
1998)).
I
First, we consider whether the Board erred with re-
spect to Okada. As noted earlier, LSI originally contended
that Okada’s disclosure of Rule 2 anticipates claims 14 and
17, but LSI does not now argue that Rule 2 anticipates. Ra-
ther, LSI argues that Tables 8 and 9 of Okada’s example
mapping of 8-bit input data blocks independently satisfy
the claimed requirements. The Board concluded that this
theory was both untimely (because it was raised for the
first time at the Board hearing) and unpersuasive (because
Tables 8 and 9 are not complete embodiments separate
from Tables 1–7).
Before this court, LSI did not challenge the Board’s de-
termination that LSI’s argument about Okada’s Tables 8
and 9 was “improper as untimely.” J.A. 31. At oral argu-
ment, LSI indeed admitted that it did not appeal the
Board’s untimeliness determination. However, LSI argues
that it was not necessary to challenge the Board’s untime-
liness determination because the Board nevertheless
reached the merits.
In Intelligent Bio-Systems, Inc. v. Illumina Cambridge
Ltd., we rejected a similar contention, holding the Board’s
rejection of arguments on the ground that they were newly
raised in a reply brief was not an abuse of discretion even
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though the Board went on to address the merits.
821 F.3d
1359, 1369–70 (Fed. Cir. 2016). We explained:
Because we conclude that the reply brief and ac-
companying declaration exceeded the scope of the
reply under § 42.23(b), and, therefore, that the
Board did not abuse its discretion in excluding
those documents, we need not . . . review the
Board’s conclusion that, even if proper, the argu-
ments contained in the reply brief are unpersua-
sive for the same reason it found the arguments in
the petition unpersuasive.
Id. at 1370 (emphasis added); see also Gen. Access Sols.,
Ltd. v. Sprint Spectrum L.P., 811 F. App’x 654, 659 n.3
(Fed. Cir. 2020) (“Because we find that the Board did not
abuse its discretion in declining to address the improperly
incorporated documents, we do not reach the question of
whether the Board erred in its alternative holding that
evaluated those materials . . . .”).
We affirm the Board’s conclusion of untimeliness be-
cause LSI forfeited any challenge to the untimeliness hold-
ing by failing to challenge it in its opening brief on appeal,
and the Board’s timeliness holding constitutes an inde-
pendent ground for its decision. E.g., SmithKline Beecham
Corp. v. Apotex Corp.,
439 F.3d 1312, 1319 (Fed. Cir. 2006)
(“Our law is well established that arguments not raised in
the opening brief are waived.”).
II
We next consider whether the Board erred in rejecting
LSI’s anticipation theory based on Tsang. This requires us
to determine whether the relevant portions in Tsang relied
upon by LSI describe an invention “by another.” A claimed
invention is anticipated if “the invention was described in
. . . an application for patent, published under section
122(b), by another filed in the United States before the in-
vention by the applicant for patent.” § 102(e) (emphasis
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added). A patent applicant or owner may overcome antici-
pation under § 102(e) by “establish[ing] that the relevant
disclosure [in the prior-art reference] describes their own
invention,” In re Costello,
717 F.2d 1346, 1351 (Fed. Cir.
1983), i.e., that it is not “by another,” § 102(e). Determin-
ing whether a reference is “by another” involves three
steps:
[T]he Board must (1) determine what portions of
the reference patent were relied on as prior art to
anticipate the claim limitations at issue, (2) evalu-
ate the degree to which those portions were con-
ceived “by another,” and (3) decide whether that
other person’s contribution is significant enough,
when measured against the full anticipating disclo-
sure, to render him a joint inventor of the applied
portions of the reference patent.
Duncan Parking, 914 F.3d at 1358.
LSI argues that it relied on Tsang to establish antici-
pation (and not the Seagate Annual Report), thus satisfy-
ing the first prong of the Duncan Parking test, and that
since (allegedly) Tsang is a species of the genus described
in the ’601 patent, it anticipates claims 14 and 17. LSI mis-
understands the relevant test. The inquiry is not simply
whether LSI relied on Tsang and whether Tsang’s disclo-
sures anticipate. The question is whether the invention of
Tsang was relied upon and relevant to anticipation, or
whether it was simply Tsang’s summary of the earlier
Seagate Annual Report that was relied upon and relevant
to anticipation. Tsang’s summary of, and reliance on, the
earlier work of Dr. Moon and Dr. Brickner does not make
Tsang an inventor of the earlier work.
In the related context of obviousness, we recently ex-
plained that “[t]he portions of the reference being consid-
ered must be relied upon and relevant to establishing
obviousness.” Google LLC v. IPA Techs. Inc.,
34 F.4th
1081, 1086 n.3 (Fed. Cir. 2022). “Otherwise, a party
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challenging a patent could artificially alter the inventive
entity for comparison by citing extraneous portions of a
multi-inventor prior art reference, thereby making it ‘by
others’ even if the portions of the reference necessary for
establishing obviousness had the same inventive entity as
the challenged patent.”
Id.
Here, the petition relied both on portions of Tsang that
summarized the Seagate Annual Report and on additional
portions of Tsang that were not merely derivative of the
Seagate Annual Report—portions describing Tsang’s spe-
cific invention. But those additional portions of Tsang are
not relevant to anticipation. The Board properly concluded
that the two Tsang embodiments, which included the spe-
cific 5/6 and 6/7 rates that were different from the 4/5 rate
disclosed by Dr. Moon and Dr. Brickner in the Seagate An-
nual Report, were not relevant to the scope of the chal-
lenged claims because “Tsang’s 5/6 and 6/7 MTR rates . . .
do not refer to the values of constraints j and k,” which im-
pose limits on the number of consecutive transitions and
non-transitions in the challenged claims. J.A. 38. Thus,
Tsang’s 5/6 and 6/7 rates address characteristics that “are
not limited by the challenged claims” and are not relevant
to the limitations in the challenged claims.
Id. Indeed,
LSI’s briefs on appeal take pains to repeatedly remind us
that the invention of Tsang is quite different from the ’601
patent. Appellant’s Br. 36 (Tsang’s state-dependent
method results “in efficiencies and higher rates that could
not be realized using the block-code approach disclosed in
the ’601 patent specification.”);
id. at 37 (Tsang disclosed
“two encoding methods that are impossible to implement
using the block-code approach disclosed in the ’601 patent
specification,” and Tsang’s methods “make available addi-
tional ‘valid’ codewords that are not available with the
block-code method.”);
id. at 38 (“Tsang’s invention repre-
sents a significant advance over the simple block-code
method disclosed in the specification of the ’601 patent.”);
id. at 42 (“Tsang expressly explains that [Tsang’s]
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inventions were not made—and could not have been
made—using a ‘one-to-one block mapping’ method like that
disclosed in Figure 6 of the ’601 Patent. . . . Tsang’s method
is more efficient than the block-code method because it
stores data more densely on a disk.”);
id. at 42–43 (Tsang’s
“inventions were not made using a block-code method like
the one disclosed in the specification of the ’601 Patent,”
and “do not utilize a block code method like the 4/5 code
disclosed in the ’601 specification.”).
It is thus undisputed that these unique features of
Tsang were irrelevant to anticipation of the invention of
claims 14 and 17, and that the concept of limitations on the
number of consecutive transitions and non-transitions (the
j and k constraints in the challenged claims) was disclosed
in the Seagate Annual Report and merely repeated in
Tsang’s Background section. Tsang, col. 1, l. 41–col. 2, l.
63. In view of this, the Board did not err in holding that it
was “persuaded that the [p]etition relies on the portions of
Tsang describing MTR constraints j and k, which are also
described in the Seagate Annual Report,” J.A. 43, such that
Tsang did not qualify as “the work of another,” J.A. 44. 4
4 The Board stated:
Although we recognize the [p]etition relies on vari-
ous portions of Tsang for background and context,
when considering the [p]etition as a whole, we
agree with Patent Owner that the [p]etition relies
solely on material disclosed in the Seagate Annual
Report for anticipation of the challenged claims.
Throughout the [p]etition, [p]etitioner focuses on
Tsang’s disclosure of two embodiments “for encod-
ing ‘data words . . . having “m” successive bits’ into
‘code words . . . having “n” bits where “n” is greater
than “m”’” as anticipating.
J.A. 37–38 (quoting J.A. 164) (emphasis added).
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Contrary to LSI’s contention, the Board did not find
that Dr. Tsang’s contribution in his patent was uninventive
or that Dr. Tsang was not the inventor of his own patent.
Rather, the Board properly found that the material in the
Tsang patent that exceeded the disclosure of the Seagate
Annual Report was not relevant to the anticipation chal-
lenge to claims 14 and 17 of the ’601 patent and that sum-
marizing the Seagate Annual Report in Tsang did not
make Tsang an inventor of the material.
CONCLUSION
We affirm the Board’s holdings that arguments as to
Okada were untimely and that relevant teachings in Tsang
were not “by another.”
AFFIRMED
COSTS
Costs to UMN.
