Nuance Communications, Inc. v. Mmodal LLC ( 2021 )

Case: 20-1549 Document: 63 Page: 1 Filed: 03/10/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NUANCE COMMUNICATIONS, INC.,
Appellant
v.
MMODAL LLC,
Appellee
ANDREW HIRSHFELD, PERFORMING THE
FUNCTIONS AND DUTIES OF THE UNDER
SECRETARY OF COMMERCE FOR
INTELLECTUAL PROPERTY AND DIRECTOR OF
THE UNITED STATES PATENT AND TRADEMARK
OFFICE,
Intervenor
______________________
2020-1549, 2020-1550
______________________
Appeals from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. IPR2018-
01431, IPR2018-01435.
______________________
Decided: March 10, 2021
______________________
BRIAN E. FERGUSON, Weil, Gotshal & Manges LLP,
Washington, DC, for appellant. Also represented by
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2 NUANCE COMMUNICATIONS, INC. v. MMODAL LLC
STEPHEN BOSCO; ANISH R. DESAI, SUDIP KUMAR KUNDU,
New York, NY; DAVID GREENBAUM, Nuance Communica-
tion, Inc., Mahwah, NJ.
GABRIEL K. BELL, Latham & Watkins LLP, Washing-
ton, DC, for appellee. Also represented by INGE OSMAN,
JONATHAN M. STRANG, KEVIN WHEELER; DAVID K.
CALLAHAN, Chicago, IL.
MEREDITH HOPE SCHOENFELD, Office of the Solicitor,
United States Patent and Trademark Office, Alexandria,
VA, for intervenor. Also represented by THOMAS W.
KRAUSE, FARHEENA YASMEEN RASHEED, MOLLY R. SILFEN.
______________________
Before LOURIE, O’MALLEY, and REYNA, Circuit Judges.
LOURIE, Circuit Judge.
Nuance Communications, Inc. (“Nuance”) appeals from
two final written decisions of the U.S. Patent and Trade-
mark Office Patent Trial and Appeal Board (“the Board”)
holding claims 8 and 13 of U.S. Patent 8,117,034 (“the ’034
patent”) and claims 9–11 of U.S. Patent 6,999,933 (“the
’933 patent”) unpatentable as obvious. See MModal LLC v.
Nuance Commc’ns, Inc., No. IPR2018-01431 (P.T.A.B. Apr.
3, 2020), J.A. 134–96; MModal LLC v. Nuance Commc’ns,
Inc., No. IPR2018-01435 (P.T.A.B. Apr. 21, 2020), J.A. 197–
266. For the reasons detailed below, we affirm.
BACKGROUND
Nuance owns the ’034 and ’933 patents, which are
directed to systems and methods for correcting text
generated by automatic speech recognition technology
(“ASR”). We begin with a brief background of the
technology. ASR converts spoken words into text. J.A.
2702. Specifically, audio files with speech recordings are
“distribute[d]” to computers with ASR. ’933 patent col. 1
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NUANCE COMMUNICATIONS, INC. v. MMODAL LLC 3
ll. 23–28. 1 Using ASR, the computers generate a written
transcript of the audio file. Id. col. 1 ll. 29–39.
The patents describe that ASR can be error-prone,
requiring human editors (“transcriptionists”) to make
corrections to the converted text. Id. col. 1 ll. 4–9; see also
J.A. 1441 col. 1 ll. 35–52. In order to correct the generated
text, transcriptionists typically listen to an audio file of the
words while an “audio cursor” follows along in the
transcript. ’933 patent col. 1 ll. 40–50. The audio cursor
visually indicates the word in the transcript that
corresponds to the word that has just been spoken in the
audio file. Id. This method is referred to as “synchronous
playback mode.” Id. Although synchronous playback mode
made it easier for transcriptionists to review the transcript,
it had a specific disadvantage: whenever transcriptionists
would spot an error, they would need to stop the playback
of the audio, correct the error, and only then resume the
audio. Id. col. 1 ll. 51–58. The patents explain that the
delay could be time consuming. Id. col. 2 ll. 7–13.
The patents purport to improve upon the
disadvantages of synchronous playback mode. Unlike
previous systems, which disclosed only the use of an audio
cursor, the patents disclose the use of a synchronous
playback mode that includes an audio cursor and a text
cursor. Id. col. 3 ll. 29–52. Consequently, transcriptionists
can make a text correction with the text cursor while the
audio cursor continues to move through the text in time
with the audio. Id. col. 6 ll. 35–42. Importantly,
transcriptionists need not stop the audio playback when
making a text correction, unlike prior systems. Id. col. 3 ll.
35–43. The patents further describe that transcriptionists
can synchronize the text cursor with the audio cursor or the
1 Because the specifications of the patent are sub-
stantially similar, we cite only the ’933 patent unless oth-
erwise indicated.
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4 NUANCE COMMUNICATIONS, INC. v. MMODAL LLC
audio cursor with the text cursor. Id. col. 3 ll. 53–66, col. 8
ll. 1–7. All of the challenged claims recite an audio cursor
and a text cursor.
Claim 8 of the ’034 patent reads as follows:
8. A method of assisting in correcting text
information recognized by a speech recognition
device from speech information, the method
comprising:
receiving the speech information, the text
information recognized from the speech
information, and link information that associates
portions of the text information with portions of the
speech information from which the portions of the
text information were recognized by the speech
recognition device;
providing an audio cursor for display during
acoustic playback of the speech information, the
audio cursor highlighting portions of the text
information synchronous with the playback of the
speech information according to associations
provided by the link information such that, when
displayed to the user, the audio cursor highlights
the portions of the text information as the
associated portions of the speech information are
being acoustically played back; and
providing a text cursor for display to facilitate
editing the text information, the text cursor
indicating a position in the text information where
at least one edit will be performed upon receiving
editing information entered by the user; and
automatically synchronizing the text cursor and
the audio cursor, wherein automatically
synchronizing the text cursor and the audio cursor
comprises automatically positioning the text cursor
at a predetermined position relative to a location of
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NUANCE COMMUNICATIONS, INC. v. MMODAL LLC 5
the audio cursor and automatically moving the
location of the text cursor synchronous with the
movement of the audio cursor during the acoustic
playback until an editing operation is performed.
’034 Patent col. 9 l. 43–col. 10 l. 6.
Dependent claim 13 recites:
13. The method of claim 8, wherein automatically
synchronizing includes continuously automatically
synchronizing the text cursor and the audio cursor
when a continuous synchronous playback mode is
activated, the method further comprising:
deactivating continuously automatically
synchronizing upon receiving at least one first
keyboard input from the user, the deactivating
including uncoupling the text cursor from the audio
cursor; and
activating the continuous synchronous playback
mode upon receiving at least one second keyboard
input from the user to resume continuously
automatically synchronizing the text cursor and
the audio cursor.
Id. col. 10 ll. 33–45.
Claim 9 of the ’933 patent reads as follows:
9. A correction method (16) for the correction of
incorrect words in text information (ETI)
recognized by a speech recognition device (1) from
speech information (SD), in which the following
method steps are executed:
reception of the speech information (SD), the
associated recognized text information (ETI) and
link information (LI), which marks the part of the
speech information (SD) at which the word was
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6 NUANCE COMMUNICATIONS, INC. v. MMODAL LLC
recognized by the speech recognition device (1) for
each word of the recognized text information (ETI);
allowing a synchronous playback mode, in which,
during the acoustic playback of the speech
information (SD) the word of the recognized text
information (ETI), which word is marked by the
link information (LI) for the speech information
(SD) just played back is marked synchronously,
while the word just marked features the position of
an audio cursor (AC);
editing of the incorrect word with a text cursor (TC)
according to editing information (EI) entered by a
user, the editing of the incorrect word being
possible with the synchronous playback mode
activated in the correction device (10).
’933 patent col. 9 l. 44–col. 10 l. 20.
Claim 10, which depends from claim 9, recites that the
“text cursor (TC) is synchronized with the audio cursor
(AC) or the audio cursor (AC) is synchronized with the text
cursor (TC) depending on the editing information entered
(EI).” Id. col. 10 ll. 21–25. Claim 11, which also depends
from claim 9, requires that the “cursors . . . are
synchronized by manually actuating at least one key.” Id.
col. 10 ll. 26–28.
This appeal primarily centers on two elements of the
claims: (1) the use of a text cursor to edit incorrect words
in a transcript, and (2) the use of an audio cursor to visually
indicate the word in the transcript that corresponds to the
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NUANCE COMMUNICATIONS, INC. v. MMODAL LLC 7
word that has just been spoken in the audio file. See
Appellant’s Br. 46. Both cursors are shown below.
ʼ034 Patent, Portion of Fig. 1 (annotated).
MModal LLC (“MModal”) filed petitions for inter partes
review of claims 8 and 13 of the ’034 patent and claims 9–
11 of the ’933 patent. In both petitions, MModal asserted
that the claims would have been obvious over U.S. Patent
6,360,237 (“Schulz”), or Schulz in view of U.S. Patent
Publication 2002/0095291 (“Sumner”).
Schulz discloses systems and methods for editing text
generated by ASR while the recorded audio is played back.
Like the patents, Schulz explains that prior art methods of
correcting ASR transcription errors were time consuming
because they required the transcriptionists to stop the
audio playback before correcting any errors. J.A. 1441 at
col. 2 ll. 6–8, 16–24. In order to improve upon this “slow
process,” Schulz describes a “playback edit mode” that
allows transcriptionists to edit a transcript without
stopping the audio recording. J.A. 1441 at col. 2 ll. 23–24;
J.A. 1443 at col. 5 l. 54–col. 6 l. 3.
Schulz discusses multiple approaches for defining the
location of an edit within the transcript. In one
embodiment, one cursor visually indicates both the location
at which a text edit will occur and the position of the word
just spoken in the audio playback. J.A. 1440 at Figs. 4a–
4b; J.A. 1444 at col. 7 ll. 29–32; J.A. 1446 at col. 11 ll. 31–
36. For example, “[i]n FIG. 4a, [shown below] the cursor is
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8 NUANCE COMMUNICATIONS, INC. v. MMODAL LLC
underneath the word ‘accident’ at the same time that this
word is being spoken on the audio recording. . . . The period
edit function key is then depressed. FIG. 4b shows the
insertion of a period 66 immediately after the word
‘accident.’” J.A. 1446 at col. 11 ll. 31–36.
Alternatively, Schulz discloses a second embodiment
that includes a “reaction time variable” to improve the
editing process. Here, Schulz recognizes that a user may
struggle to press the appropriate key quickly enough to
trigger an edit “while the desired word is underscored by
the cursor.” J.A. 1446 at col. 11 ll. 49–54. The reaction
time variable can thus “compensate for the
transcriptionist’s reaction time by adjusting the location of
an editing function by the reaction time.” Id. at col. 11 ll.
63–65. In this embodiment, there are two separate
locations: (1) an audio cursor that visually indicates the
word in the transcript that corresponds to the word that
has just been spoken in the audio file (“cursor 60”), and (2)
a text insertion point that is separated from cursor 60 by a
period of time and determines the location that text edits
will be made (“insertion point 61”). Id. at col. 11 l. 49–col.
12 l. 55. See also Appellee’s Br. 39. Cursor 60 is denoted
by a visual indicator. Important to this appeal, unlike
cursor 60, insertion point 61 is not displayed visually
(although insertion point 61 is denoted by a triangle in Fig.
5a, the Board found, and the parties do not dispute, that it
is technically “not displayed visually”). J.A. 169; J.A. 241.
Figure 5a, shown below, illustrates this embodiment.
Schulz explains that “cursor 60 is aligned under the word
‘accident’ as it is being reproduced in audio.” J.A. 1443 at
col. 6 ll. 30–35. If a reaction time variable is employed
(such as 250 milliseconds), when the user presses the edit
function key at time T0, an edit will be performed on the
word “automobile” (the word that was marked by the
cursor 60 at a time 250 milliseconds before time T0 and is
represented by insertion point 61). J.A. 1446 at col. 12 ll.
22–32.
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NUANCE COMMUNICATIONS, INC. v. MMODAL LLC 9
Schulz also discloses a “standard text editor mode,” in
which playback of the audio file is stopped and the
transcriptionists can use a cursor to edit the text. J.A. 1443
at col. 5 ll. 35–44; J.A. 1447 at col. 13 ll. 21–27.
Sumner discloses two cursors with two different
functions for use with ASR: (1) an insertion cursor, to
“denote the location where new text will be inserted within
a document,” and (2) a correction cursor, which marks the
last location where a correction to the text was made. J.A.
1538–40 ¶¶ 8, 14, 24–25.
Before analyzing whether the claims would have been
obvious, the Board engaged in claim construction. It
determined that “using a single visual indication on a
display to mark the position of both the audio cursor and
the text cursor” falls within the scope of the claims. J.A.
143; J.A. 207 (emphasis added). Subsequently, the Board
concluded that the claims are unpatentable as obvious
under two separate grounds. Under the first ground,
pursuant to its claim construction, the Board determined
that the claims would have been obvious over Schulz.
Specifically, the Board found that the single displayed
cursor in Schulz, as exemplified in Figures 4a–b, satisfies
both the “audio cursor” and “text cursor” limitations of the
claims. J.A. 165–67; J.A. 228–30. Under the second
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ground, the Board concluded that, even if contrary to its
construction, the claims require separate visual indicators
for each cursor, they still would have been obvious over
Schulz’s reaction time embodiment (Figures 5a–b).
Specifically, it determined that it would have been obvious
to combine a “visual indicator” at the targeted insertion
point 61 (to satisfy the text cursor limitation) with the
audio cursor 60, in view of Schulz, or Schulz and Sumner.
J.A. 169; J.A. 241.
Nuance appealed to this court. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(4)(A).
DISCUSSION
We review the Board’s legal determinations de novo, In
re Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004) (citing In re
Kollar, 286 F.3d 1326, 1329 (Fed. Cir. 2002), and its fact
findings for substantial evidence, In re Gartside, 203 F.3d
1305, 1316 (Fed. Cir. 2000). A finding is supported by sub-
stantial evidence if a reasonable mind might accept the ev-
idence as adequate to support the finding. Consol. Edison
Co. v. N.L.R.B., 305 U.S. 197, 229 (1938).
Obviousness is a question of law, supported by under-
lying fact questions. In re Baxter Int’l, Inc., 678 F.3d 1357,
1361 (Fed. Cir. 2012). In evaluating obviousness, we con-
sider the scope and content of the prior art, differences be-
tween the prior art and the claims at issue, the level of
ordinary skill in the pertinent art, and any relevant sec-
ondary considerations. Graham v. John Deere Co., 383
U.S. 1, 17–18 (1966).
Nuance asserts that the Board erred in concluding that
the prior art renders obvious the use of a text cursor in
combination with an audio cursor, as required by the
claims. We first address Nuance’s arguments regarding
independent claims 8 and 9 and then address Nuance’s
arguments regarding dependent claims 10 and 13.
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I
We turn first to Nuance’s argument that the Board
erred in concluding that claims 8 and 9 are unpatentable
as obvious. Nuance contends that the Board’s second
obviousness ground, which was based on Schulz’s reaction
time embodiment, was erroneous. Specifically, Nuance
asserts that the Board erred in finding that it would have
been obvious for a person of skill to combine a (1) “visual
indicator” at insertion point 61 with (2) the audio cursor 60.
According to Nuance, the Board provided “no . . . reasons”
as to why a person of skill in the art would be motivated to
modify Schulz in this manner. Appellant’s Br. 53. MModal
responds that the Board’s analysis was supported by
substantial evidence. According to MModal, a person of
ordinary skill would have been motivated to add a visual
indicator at insertion point 61 in order to view the location
where text edits would occur.
We agree with MModal that the Board’s determination
was supported by substantial evidence. First, the Board
found that “the use of, and the benefits of displaying, each
type of cursor—an audio cursor and a text cursor—were
well known in the art.” J.A. 169; see also J.A. 241. As the
Board observed, the patent specifications themselves
disclose that it was well known in the art to use an audio
cursor to follow the words being played back and to use a
text cursor to make corrections to the text. See J.A. 169
(citing ’034 patent col. 1 ll. 28–56); see also J.A. 241. Given
these benefits, the Board reasonably found that a person of
ordinary skill would have been motivated to add a visual
indicator at insertion point 61 for use with Schulz’s audio
cursor 60. The Board elaborated that doing so would allow
a person to simultaneously (1) confirm the “precise
position” where edits would occur with a text cursor at
insertion point 61, and (2) observe the text being spoken in
the audio playback with the audio cursor 60. J.A. 172–174;
J.A. 245–247. Indeed, the Board pointed out that not
displaying a visual indicator at insertion point 61 could
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create confusion as to where the corrections would be
made. J.A. 172 (citing expert testimony); J.A. 245. The
Board’s determination was further supported by Sumner,
which discloses the advantages of displaying cursors
relating to two different, but relevant functions at the same
time. Id. Moreover, implementing such a modification
would have taken only routine skill. For example, the
Board credited MModal’s argument, based on expert
testimony, that “it was well-known for text editors, such as
Microsoft Word, to visually display a text cursor . . . .” J.A.
169; J.A. 241–42.
Nuance makes several arguments as to why the
Board’s determination should be reversed, all
unconvincing. First, Nuance argues that Sumner cannot
support the Board’s second obviousness determination
because its two cursors do not function as an audio cursor
and a text cursor. Appellant’s Br. 53.
Nuance’s argument misses the mark. The Board
acknowledged that, strictly speaking, Sumner’s cursors do
not correspond to the audio cursor and text cursor of the
claims. See J.A. 173–75; J.A. 246–48. However, the Board
did not rely on Sumner for that purpose. Rather, the Board
relied on Sumner’s disclosure that it would be beneficial to
simultaneously display two cursors with different
functions. Id. The Board further found that a person of
ordinary skill would have been motivated to implement
that teaching in order to modify Schulz. Id.Second, Nuance argues that the Board improperly
“requir[ed]” it to prove that the specifications describe the
inventive aspects of the claims, namely, the simultaneous
display of two separate cursors. Appellant’s Br. 51–52.
According to Nuance, the specifications “did not need to
emphasize the visual nature of the cursors because” a
person of ordinary skill in the art “reviewing the
specifications would have understood . . . the advantages
that the two cursors would provide.” Id. at 52.
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NUANCE COMMUNICATIONS, INC. v. MMODAL LLC 13
Consequently, Nuance contends it was improper for the
Board to require such a showing in order to conclude that
the claims are nonobvious. Id.We disagree with Nuance’s interpretation of the
Board’s analysis. Contrary to Nuance’s assertion, at no
point did the Board indicate that its obviousness
determination hinged on the specifications’ disclosure that
the claimed subject matter is inventive. Rather, the Board
simply examined the specifications and found support for
its obviousness determination. It was not improper for the
Board to review the specifications when analyzing whether
the claims would have been obvious. Moreover, the Board’s
analysis was further supported by a variety of other
evidence, including prior art and expert testimony. See,
e.g., J.A. 169; J.A. 241–42.
Third, Nuance asserts that insertion point 61 cannot
be a “different cursor from cursor 60” as it is “simply the
position of cursor 60 at a different, earlier point in time.”
Appellant’s Br. 49. We disagree. Although insertion point
61 denotes the location of cursor 60 at an earlier point in
time, it still performs a separate and distinct function,
namely, denoting where edits will occur. See J.A. 169.
Indeed, for that very reason, in Schulz, it is denoted by a
different number (61) from cursor 60. 2
2 Nuance also contends that the Board should have
construed cursor to mean a “moveable indicator on a
display screen.” Appellant’s Br. 35, 52–53. According to
Nuance, under its construction, insertion point 61 cannot
be a cursor because it doesn’t visibly indicate the text
location. However, that amounts to an argument that
because insertion point 61 is not visible, it would not have
been obvious to make it visible. As discussed, the Board
already found that it would have been obvious to make
insertion point 61 visible.
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In sum, the Board reasonably found that a person of
ordinary skill “would have wanted, and known how, to see
where . . . text edits would occur by providing a visual
indicator” to show the position of insertion point 61. J.A.
173; J.A. 245. Because the Board’s second obviousness
ground was supported by substantial evidence, we need not
reach Nuance’s arguments regarding the Board’s first
obviousness ground (Schulz Figures 4a–b), which did not
include a reaction time.
II
We turn next to Nuance’s arguments that the Board
erred in concluding that dependent claims 10 and 13 are
unpatentable as obvious. First, Nuance asserts that the
Board did not explicitly determine that claims 10 and 13
would have been obvious under its second obviousness
ground (based on Schulz’s reaction time embodiment).
Rather, Nuance contends that the Board applied its second
obviousness ground only to independent claims 8 and 9.
Second, Nuance argues that claims 10 and 13 are not
unpatentable as obvious, even under the Board’s second
obviousness ground. We address each argument in turn.
A
As an initial matter, the Board indicated that it
analyzed the dependent claims under the first and second
obviousness grounds. For example, when addressing
Nuance’s arguments regarding claim 10, the Board
clarified that it was incorporating its entire analysis for
claim 9, including its second obviousness ground. See J.A.
257 (noting with respect to claim 10 that “[f]or reasons we
discussed for claim 9 . . . we are persuaded [MModal] has
shown Schulz, alone or in combination with Sumner,
teaches two distinct cursors”). Similarly, the Board stated
that its analysis of claim 13 incorporates its analysis of
claim 8, at least in part. See J.A. 185 (reiterating that “all
of” claim 8’s limitations would have been obvious “[f]or the
reasons explained above in Section III.B.3.a” and then
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NUANCE COMMUNICATIONS, INC. v. MMODAL LLC 15
explaining why “the additional limitations recited in claim
13” would also have been obvious in view of Schulz)
(emphasis added).
To the extent that the Board did not explicitly state
whether it was analyzing the claims under the second
obviousness ground, any such ambiguity was harmless.
First, the logic of the Board’s determination would have
been substantially the same under either obviousness
ground, as will be further explained below. Second, the
dependent claims only add minor limitations to the
independent claims. For example, independent claim 9
recites use of a text cursor and an audio cursor. See ’933
patent col. 9 l. 44–col. 10 l. 20. Claim 10, which depends
from claim 9, recites, in relevant part, that the “text cursor
(TC) is synchronized with the audio cursor (AC) or the
audio cursor (AC) is synchronized with the text cursor (TC)
depending on the editing information entered (EI).” Id. col.
10 ll. 21–25. Indeed, before the Board, Nuance did not
present arguments for claim 10 beyond those already
raised for claim 9. See J.A. 257. Additionally, claim 10’s
synchronization limitation is similar to independent claim
8’s limitation that requires “automatically synchronizing
the text cursor and the audio cursor,” which the Board
explicitly found obvious under its second ground. Compare
’933 patent col. 10 ll. 21–25, with ’034 patent col. 9 ll. 66–
67; J.A. 173–77. Similarly, claim 13 recites, in relevant
part, “uncoupling the text cursor from the audio cursor.”
’034 patent col. 10 ll. 40–41.
B
We now turn to Nuance’s argument that claims 10 and
13 are not unpatentable as obvious, even under the Board’s
second obviousness ground. With respect to claim 10,
Nuance contends that the determination whether to
synchronize the text cursor to the audio cursor, or vice-
versa, depends on the editing information entered by the
user. Nuance asserts, however, that in Schulz, “the
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positions of cursor 60 and location 61 (the edit insertion
point) are always determined solely by the location of the
audio cursor 60 because the location 61 is merely the
position of audio cursor 60 at an earlier point in time.”
Appellant’s Br. 56–57. We are unpersuaded by Nuance’s
argument. As the Board determined, for claim 10, Schulz’s
insertion point 61 (the text cursor) realigns (i.e.,
synchronizes) with the audio cursor after the user presses
an edit function key. See J.A. 256–57. Moreover, this
process remains the same regardless whether there is a
reaction time variable (as in the second obviousness
ground) or there is no reaction time variable (as in the first
obviousness ground).
With respect to claim 13, Nuance asserts that the claim
language requires decoupling the text and audio cursors,
whereas the edit insertion point 61 in Schulz is “always
tied to the cursor 60.” Appellant’s Br. 55. We disagree.
Here, the Board found that Schulz’s insertion point 61 is
coupled to the audio cursor 60 only in synchronous
playback mode. J.A. 187–88. The Board then reasonably
determined, with support from the specification, that when
playback mode is stopped and changed to text editor mode,
the audio and text cursors can be uncoupled such that the
text cursor can be used as a normal text editor. See, e.g.,
J.A. 188 (quoting J.A. 1447 at col. 13 ll. 22–27). Moreover,
this process remains the same regardless whether there is
a reaction time variable (as in the Board’s second
obviousness ground) or there is no reaction time variable
(as in the Board’s first obviousness ground). 3
Nuance also asserts that this court’s decision in
Arthrex v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir.
3 To the extent that Nuance’s arguments here are
duplicative of its arguments regarding the independent
claims, our analysis regarding the independent claims ap-
plies here too.
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NUANCE COMMUNICATIONS, INC. v. MMODAL LLC 17
2019), which issued before the final written decisions at
issue here, did not cure the Appointments clause defect.
However, we have reiterated that final written decisions
issued after Arthrex were decided by constitutionally
appointed Administrative Patent Judges. See Caterpillar
Paving Prods. Inc. v. Wirtgen Am., Inc., 957 F.3d 1342,
1343 (Fed. Cir. 2020); see also Infineum USA L.P. v.
Chevron Oronite Co. LLC, No. 2020-1333, 2021 WL 210722,
at *8 (Fed. Cir. Jan. 21, 2021).
CONCLUSION
We have considered Nuance’s remaining arguments
and find them unpersuasive. For the foregoing reasons,
the decisions of the Board are affirmed.
AFFIRMED