Allied Erecting v. Genesis Attachments, LLC , 825 F.3d 1373 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
ALLIED ERECTING AND DISMANTLING CO., INC.,
Appellant
v.
GENESIS ATTACHMENTS, LLC,
Appellee
______________________
2015-1533
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. 95/001,352.
______________________
Decided: June 15, 2016
______________________
DANIEL H. BREAN, The Webb Law Firm, Pittsburgh,
PA, argued for appellant. Also represented by RICHARD L.
BYRNE, JAMES G. PORCELLI.
RYAN WAYNE MASSEY, Harness, Dickey & Pierce, PLC,
Troy, MI, argued for appellee.
______________________
Before NEWMAN, DYK, and WALLACH, Circuit Judges.
WALLACH, Circuit Judge.
Allied Erecting and Dismantling Co., Inc. (“Allied”)
appeals the United States Patent Trial and Appeal
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Board’s (“PTAB”) decision, on inter partes reexamination,
concluding that claims 1–21 of U.S. Patent No. 7,121,489
(“the ’489 patent”) would have been obvious over German
prior art reference DE 297 15 490 U1 (“Caterpillar”) (J.A.
131–44) and U.S. Patent No. 4,283,866 (“Ogawa”) (J.A.
145–51). See Genesis Attachments, LLC v. Allied Erecting
& Dismantling Co., No. IPR2014-001006, 2014 WL
7274949 (P.T.A.B. Dec. 19, 2014); (PTAB decision denying
rehearing) (J.A. 2–8). For the reasons set forth below, we
affirm the PTAB’s decision.
BACKGROUND
I. The ’489 Patent
The ’489 patent, entitled “Multiple Tool Attachment
System,” is directed to heavy machinery tools used for
construction and demolition that can be attached to a
universal body, which in turn can be attached to “multiple
tools, such as a heavy-duty metal cutting shear, a plate
shear, a concrete crusher, [or] a grapple.” ’489 patent col.
1 ll. 22–24. Traditionally, such tools (i.e., shears, crush-
ers, grapples, etc.) were designed independently, such
that “one type of tool associated with each body [] can
have the greatest possible utility and application.” Id. col.
1 ll. 60–62. According to the ’489 patent, this approach
did “not provide a system for easily changing tools or a
system which allows complete[ly] separate tools to effi-
ciently share a common structure.” Id. col. 2 ll. 30–32. As
a result, one purpose of the ’489 patent is “to provide a
multiple tool attachment system which is easily converted
between a plurality of distinct tools.” Id. col. 2 ll. 44–46.
To achieve this objective, the ’489 patent describes a
“quick change feature[]” that enables different demolition
tools to be efficiently substituted for one another. Id.,
Abstract.
Figure 1 of the ’489 patent (illustrated below) is illus-
trative of the claimed invention. It depicts a shear (10)
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attached to a body (18), which is then attached to a piece
of demolition equipment, such as a backhoe (not illustrat-
ed). Body (18) is referred to as a “universal body . . .
because it remains common to a series of tools or tool
units [i.e., jaw sets] in the attachment system.” Id. col. 5
ll. 60–61.
Id. fig 1; J.A. 80.
The body (18) depicted above in Figure 1 is referred to
as a “universal body . . . because it remains common to a
series of tools or tool units [i.e., jaw sets] in the attach-
ment system.” Id. col. 5 ll. 59–61. As illustrated in Fig-
ure 1, each jaw set of the shear has a main pin (16) about
which jaws (12 and 14) can rotate. “A bridge housing 48
surrounds the main pin 16 and is utilized for quickly and
easily attaching the main pin 16 and the associated jaw
set to the universal body 18.” Id. col. 6 ll. 56–59.
Figure 57 (depicted below) of the ’489 patent illus-
trates the structure of the bridge housing. Sides (19) of
universal body (18), (see Figure 1) terminate at receiving
member (42) that fits between two bridge housing plates
(405 and 406). Receiving member (42) has a curved
surface (412) formed via a cutaway that engages with
cylindrical sleeve (408), and surrounds main pin (16) (see
Figure 1). When receiving member (42) is engaged with
sleeve (408), apertures (52) will be aligned and keeper
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pins (50) can be inserted to attach the bridge housing to
the universal body. Id. col. 6 ll. 63–65.
Id. fig.57.
Independent claim 1 (as amended) is representative of
the claimed invention and recites:
A tool set for coupling to the receiving
member of a body having hydraulically powered
blades, the tool set comprising:
a pair of movable blades pivoted together about
a main pivot pin;
a bridge housing encasing the main pivot pin,
wherein the bridge housing is separate from the
movable blades;
wherein the blades are movable relative to the
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bridge housing;
wherein the bridge housing with the main
pivot pin intact therein is adapted to be detacha-
bly connected to the receiving member and the
pair of movable blades is adapted to be detachably
connected to at least one hydraulic cylinder such
that the tool set may be removed from or attached
to the body without the need to disengage or en-
gage the main pivot pin from the blades, thereby
providing a quick release system for attaching the
tool set to the body; and
wherein the bridge housing has an aperture
adapted to be mated with a matching aperture of
the receiving member through a removable keeper
pin to secure the bridge housing to the receiving
member.
Id. col. 15 ll. 26–44 (emphases added to reflect disputed
claim language); see J.A. 124 (amendment to claim 1).
Bridge housing (48), which allows for various jaw sets
to be quickly and easily attached and detached, is an
embodiment of the bridge housing recited in claim 1 of the
’489 patent. The attachment and detachment method
provides for main pin (16) and its surrounding bearing
structure, including the bridge housing, which encases the
main pin, to remain attached to the jaw set when it is
removed from the universal body. Id. col. 6 l. 67–col. 7 l.
3. At issue is whether the PTAB was correct in holding
that Caterpillar and Ogawa, when combined, render
obvious the claimed invention as a whole.
II. Prior Art
A. Caterpillar
The operation of demolition tools requires the re-
placement of its jaws, “either because the blades or their
cutting edges have become worn or because other, more
appropriate jaws must be installed to demolish different
6 ALLIED ERECTING & DISMANTLING CO.
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materials.” J.A. 133. The prior art required the labor-
intensive process of first dismantling the swivel bearing
and then individually uninstalling the jaws of the tool set
from the housing. J.A. 133. To overcome this disad-
vantage, Caterpillar teaches a system where “the jaws
can be replaced as a unit in a simple manner.” J.A. 134.
Caterpillar discloses a demolition tool with a housing that
can be attached to a piece of construction equipment such
as an excavator, and has “two jaws that work together
[that] can be pivoted relative to each other.” J.A. 132.
The “first jaw is detachably connected to the housing
by means of [a] first and second mounting device[].”
J.A. 132. The first jaw is attached to the housing by two
pins and does not move with respect to the housing during
operation. J.A. 137. The second jaw “is connected on one
hand by means of the swivel bearing to the first jaw and
on the other hand is held by the drive device, which is
preferably a hydraulic cylinder which is mounted on the
housing.” J.A. 134. By making the “first and second
mounting devices . . . independent of the swivel bearing,”
the swivel bearing “functions only as the mutual swivel
mounting of the two jaws and does not function as their
attachment to the housing.” J.A. 134. Accordingly, by
immobilizing the first jaw, Caterpillar decouples the pivot
pin from the mounting mechanism as suggested by other
prior art. See J.A. 134. Caterpillar’s design thereby
enables the quick-change functionality of the jaw sets.
ALLIED ERECTING & DISMANTLING CO. 7
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J.A. 142 (fig.1).
Figure 1 of Caterpillar (depicted above) depicts a lat-
eral view of a scrap metal shear with housing (11) to
which first jaw (13) and second jaw (14) are attached.
J.A. 142. First jaw (13) is attached to housing (11) by
means of mounting devices (19) and (20). J.A. 137. The
first jaw (13) includes a pair of opposing side walls (13a)
(not shown in Fig. 1) having mounting devices (19) and
(20) which are used to attach first jaw (13) to housing
(11). J.A. 137. Mounting device (19) includes grooves (22)
with receptacle segment (22b) in the side walls (13a) for
receiving pin (21), and mounting device (20), which in-
cludes bore hole (23) in side walls (13a) for receiving
locking pin (25). J.A. 137–38. Via swivel bearing (15),
first jaw (13) supports second jaw (14), which is coupled
with hydraulic cylinder (16) at bearing (18). J.A. 137.
“The jaws are removed [by] . . . releas[ing] the first jaw 13
from . . . housing 11, [and] only [] socket pin 25 must be
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extracted, whereupon [] pin 21 can be easily extracted
from [] groove[] 22.” J.A. 138. The opening and closing of
the shear is achieved by actuation of hydraulic cylinder
(16), which allows for second jaw (14) to be swiveled
around swivel bearing (15) relative to both first jaw (13)
and housing (11). J.A. 137.
B. Ogawa
Ogawa discloses “[a] convertible bucket attachment
for excavation and clasping.” Ogawa, Abstract. Figure 4a
(reproduced below) depicts a side view of the bucket
attachment, including bucket proper (1) and sub-bucket
(2). Id., fig.4a. Both buckets are pivotally connected to
the distal end of arm (11) via a main pin (5′) such that a
hydraulic cylinder can cause both buckets to rotate. Id.
col. 2 ll. 2–17; id. col. 2 l. 59–col. 3 l. 47. Through a link-
age system, a single hydraulic cylinder is able to rotate
and operate both buckets. Id. col. 1 ll. 6–14.
Id. fig.4a; see also id. col. 4 ll. 13–40.
One purpose of Ogawa is to provide for a greater de-
gree of movement between the back and fore buckets of
the apparatus. See id. col. 1 ll. 49–55 (stating that in the
ALLIED ERECTING & DISMANTLING CO. 9
v. GENESIS ATTACHMENTS, LLC
prior art, “provision of a cylinder actuator between the
back and the fore bucket . . . imposed a substantial limita-
tion on the distance of range in which both bucket mem-
bers can be operatively moved relative to each other, and
prevented the range of angular movement of the members
from being as wide as 180 [degrees]”).
III. Procedural History
On May 5, 2010, Genesis Attachments, LLC (“Gene-
sis”) filed a petition for inter partes reexamination, assert-
ing the ’489 patent was unpatentable because it was
anticipated and obvious over different prior art refer-
ences. During reexamination, Allied amended claims 1, 7,
and 17–19, and added new claims 20 and 21. See J.A.
124–30. The amendments and new claims recited, inter
alia, that the bridge housing “encas[ed]” the main pivot
pin, and both blades were “movable” relative to the bridge
housing. See J.A. 124, 127–28. A United States Patent
and Trademark Office (“PTO”) examiner allowed the
amended claims, withdrew his initial rejections, see J.A.
2087 (rejecting claims 1, 2, 4, 6–8, 10, and 12–19 of the
’489 patent as anticipated by Ogawa), and confirmed the
patentability of claims 1–21, see J.A. 1579–80. Genesis
appealed the examiner’s decision to the PTAB. See J.A.
37–75 (“Decision on Appeal”).
On appeal, the PTAB concluded that claims 1–3, 13,
14, and 17–20 would have been obvious over Caterpillar
in view of Ogawa. See J.A. 72–73. Because the PTAB
reversed the examiner’s decision finding the amended
claims patentable, it noted that its decision constituted a
new ground of rejection and allowed Allied to reopen
prosecution or request rehearing. See J.A. 68 (citing 37
C.F.R. § 41.77(a)–(b)). 1 The PTAB then remanded to the
1 37 C.F.R. § 41.77(b) (2012) recites:
10 ALLIED ERECTING & DISMANTLING CO.
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examiner to determine whether claims 4–12, 15–16, and
21 of the ’489 patent would have also been obvious over
Caterpillar in view of Ogawa and in further view of U.S.
Patent No. 5,546,683 (“Clark”). J.A. 69.
Allied elected to reopen prosecution and submitted a
second round of amendments to claims 1, 7, and 17–19.
See J.A. 124–28. The examiner found the amendments
did not overcome the PTAB’s ground of rejection based on
Caterpillar and Ogawa, J.A. 1250–51, and that claims 4–
12, 15–16, and 21 were “unpatentable over Caterpillar in
view of Ogawa and further in view of Clark,” J.A. 1251.
The PTAB then issued a new decision affirming the
examiner’s rejections. See J.A. 10–35 (New Decision).
Like its Decision on Appeal, the PTAB again found that
“Caterpillar ‘teaches one of ordinary skill in the art the
desirability of simplifying disassembly of jaws, and dis-
closes a mechanism for doing so.’” J.A. 19 (quoting J.A.
65). The PTAB also found that Ogawa provides two
movable blades to enable a wide range of angular move-
ment. See J.A. 19. Accordingly, the PTAB concluded that
Should the [PTAB] reverse the examiner’s deter-
mination not to make a rejection proposed by a
requester, the [PTAB] shall set forth in the opin-
ion in support of its decision a new ground of re-
jection . . . . Any decision which includes a new
ground of rejection . . . shall not be considered fi-
nal for judicial review. When the [PTAB] makes a
new ground of rejection, the owner, within one
month from the date of the decision, must exercise
one of the following two options with respect to
the new ground of rejection to avoid termination
of the appeal proceeding as to the rejected claim: .
. . 1) Reopen prosecution . . . ; [or] (2) Request re-
hearing.
37 C.F.R. § 41.77(b) (emphasis added)
ALLIED ERECTING & DISMANTLING CO. 11
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based on these disclosures, a person of ordinary skill in
the art could have modified Caterpillar to provide for a
“wide range of angular movement.” J.A. 20.
Allied submitted a Request for Rehearing. J.A. 1113–
23. The PTAB denied this request and reaffirmed the
rejections. See J.A. 2–8. This appeal followed. This court
has jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A)
(2012).
DISCUSSION
I. Standard of Review and Legal Framework
Obviousness under 35 U.S.C. § 103 (2006) is a mixed
question of law and fact. See Harmonic Inc. v. Avid Tech.,
Inc., 815 F.3d 1356, 1363 (Fed. Cir. 2012). The PTAB’s
ultimate determination of obviousness is a legal conclu-
sion, which we review de novo. In re Baxter Int’l, Inc., 678
F.3d 1357, 1361 (Fed. Cir. 2012). We review the PTAB’s
underlying factual findings, including what a reference
teaches and the differences between the prior art and the
claimed invention, for substantial evidence. See id. (citing
Graham v. John Deere Co. of Kan. City, 383 U.S. 1, 17–18
(1966)). We also review the PTAB’s “finding of a motiva-
tion to combine [] for substantial evidence.” In re Kahn,
441 F.3d 977, 985 (Fed. Cir. 2006) (citation omitted). “A
finding is supported by substantial evidence if a reasona-
ble mind might accept the evidence to support the find-
ing.” K/S Himpp v. Hear-Wear Techs., LLC, 751 F.3d
1362, 1364 (Fed. Cir. 2014) (citation omitted).
A patent claim is unpatentable as obvious “if the dif-
ferences between the subject matter sought to be patented
and the prior art are such that the subject matter as a
whole would have been obvious at the time the invention
12 ALLIED ERECTING & DISMANTLING CO.
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was made to a person having ordinary skill in the art.” 2
35 U.S.C. § 103 (2006).
II. The ’489 Would Have Been Obvious in Light of Cater-
pillar and Ogawa
At issue is whether it would have been obvious to
modify Caterpillar to make both blades movable as taught
by Ogawa, while retaining Caterpillar’s quick change
functionality. Allied argues that “[n]o substantial evi-
dence in the record exists that would allow the [PTAB] to
conclude that [Caterpillar and Ogawa] taught the ele-
ments of the claimed invention or rendered it obvious.”
Allied Br. 29. Allied presents two distinct arguments in
support of its position. First, Allied challenges the
PTAB’s finding of a motivation to combine Caterpillar and
Ogawa. Specifically, Allied argues that “the [PTAB]
relied on improper hindsight, in the absence of any valid
reasoning or supporting evidence, for its obviousness
conclusion.” Id. (capitalization modified). Second, Allied
contends that “Caterpillar expressly teaches away from
combining its teachings with Ogawa.” Id. at 32 (capitali-
zation modified). Specifically, Allied argues that the
PTAB’s “reasoning would fundamentally redesign and
reconstruct Caterpillar to change its principle of operation
and [thus] result in an inoperable device.” Id. at 38
(capitalization modified). We address each of these argu-
ments in turn.
2 The Leahy-Smith America Invents Act (“AIA”)
amended § 103. See Pub. L. No. 112-29, § 3(c), 125 Stat.
284, 287 (2011). However, because the application that
led to the ’489 patent was filed before March 16, 2013, the
version of 35 U.S.C. § 103 that applies here is the one in
force preceding the changes made by the AIA. See id.
§ 3(n)(1), 125 Stat. at 293.
ALLIED ERECTING & DISMANTLING CO. 13
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A. Substantial Evidence Supports the PTAB’s Finding of
a Motivation to Combine Caterpillar and Ogawa
According to Allied, contrary to the PTAB’s assertion,
“making the second jaw in Caterpillar movable involves a
massive, nonobvious reconstruction of the device that not
only changes its principle of operation, but renders the
device inoperable as a result.” Id. at 40. Allied contends
that the modification of Caterpillar in view of Ogawa
would not only “result [in] substantial redesign and
reconstruction,” id. at 44, but also “would [not] have been
obvious to a [person having ordinary skill in the art],” id.
at 45.
Although the PTAB acknowledged that its “suggested
modification to Caterpillar would entail design and struc-
tural changes,” J.A. 67, it nonetheless determined:
it would have been obvious to one of ordinary skill
in the art to apply the teaching of Ogawa with re-
spect to articulation of both grasping members
and wide range of angular movement to thereby
modify Caterpillar so that the first jaw 13 with
the teeth thereon also pivots about the swivel
bearing 15 like second jaw 14, while also main-
taining the simplified mounting and disassembly
via the [side] walls 13a with their [mounting de-
vices] 19, 20 so that the jaws can be disassembled
in a simple manner as specifically taught therein.
J.A. 66 (citation omitted).
Contrary to Allied’s position, “it is not necessary that
[Caterpillar and Ogawa] be physically combinable to
render obvious the [’489 patent].” In re Sneed, 710 F.2d
1544, 1550 (Fed. Cir. 1983); see also In re Etter, 756 F.2d
852, 859 (Fed. Cir. 1985) (en banc) (“Etter’s assertions
that Azure cannot be incorporated in Ambrosio are basi-
cally irrelevant, the criterion being not whether the
references could be physically combined but whether the
14 ALLIED ERECTING & DISMANTLING CO.
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claimed inventions are rendered obvious by the teachings
of the prior art as a whole.”). “The test for obviousness is
not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary
reference,” In re Keller, 642 F.2d 413, 425 (CCPA
1981). See also In re Mouttet, 686 F.3d 1322, 1332 (Fed.
Cir. 2012) (citing In re Keller, 642 F.2d at 425), but rather
whether “a skilled artisan would have been motivated to
combine the teachings of the prior art references to
achieve the claimed invention,” Pfizer, Inc. v. Apotex, Inc.,
480 F.3d 1348, 1361 (Fed. Cir. 2007).
Upon determining that side walls 13a of Caterpillar
serve a similar quick release function as the bridge hous-
ing of the ’489 patent, it would have been obvious to a
person of ordinary skill in the art to modify the immobi-
lized jaw of Caterpillar (first jaw 13) in order to provide
for a wider range of motion as taught by Ogawa, to make
the jaw set more efficient. For example, a wider range of
motion would augment the jaw sets’ grasping capabilities.
See J.A. 66 (asserting a skilled artisan would seek to
modify the jaws of Caterpillar in order to provide a “wide
range of angular movement”); see also J.A. 23 (referring to
the “desirability of allowing for wide openings” (citation
omitted)). Although modification of the movable blades
may impede the quick change functionality disclosed by
Caterpillar, “[a] given course of action often has simulta-
neous advantages and disadvantages, and this does not
necessarily obviate motivation to combine.” Medichem,
S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006)
(citation omitted). As articulated by the PTAB, a skilled
artisan could modify Caterpillar in view of Ogawa by
treating the first jaw like the second. That is, by pivoting
the first jaw around the swivel bearing. See J.A. 20. Such
a design allows for a greater degree of movement between
the jaws, without impacting the quick change functionali-
ty (i.e., the ability to mount and disassemble the jaw in a
ALLIED ERECTING & DISMANTLING CO. 15
v. GENESIS ATTACHMENTS, LLC
simple manner) provided by the holding fixtures via side
walls 13a. See J.A. 20.
B. Caterpillar Does Not Expressly Teach Away from
Ogawa
Allied also argues that Caterpillar expressly teaches
away from Ogawa because “the main pivot pin function[s]
as both the pivot point for the jaws and the means for
attaching the jaws to the frame.” Allied Br. 33 (emphasis
added). According to Allied, because “the teachings of
Ogawa would encourage a [person having ordinary skill in
the art] to do exactly what Caterpillar says they should
not do––have the main pivot pin for both jaws also mount
the jaws to the frame,” id. at 37, “Caterpillar undisputed-
ly teaches away from the combination with Ogawa,” id. at
38 (citation omitted).
In its decision denying rehearing, the PTAB took the
same position it articulated in its New Decision. See J.A.
3–4. The PTAB stated that “it is well known in the art to
provide tools with jaws wherein only one of the jaws is
movable and the other is fixed . . . or wherein both of the
jaws are movable. . . .” J.A. 4 (citations omitted). Accord-
ingly, the PTAB determined “it would have been obvious
to . . . apply the teachings of Ogawa with respect to articu-
lation of both grasping members and wide range of angu-
lar movement to thereby modify Caterpillar to allow the
blades to be opened wider or to minimize movement of the
object as it is grasped.” J.A. 22–23 (internal quotation
marks and citation omitted).
Caterpillar does not expressly teach away from Oga-
wa. “A reference may be said to teach away when a
person of ordinary skill, upon reading the reference,
would be discouraged from following the path set out in
the reference, or would be led in a direction divergent
from the path that was taken by the applicant.” In re
Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). Contrary to
Allied’s contention that the PTAB incorrectly relied on
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Ogawa because its precise structure (i.e., two separate
hydraulic cylinders) is criticized by Caterpillar, the disad-
vantage underscored by Caterpillar does not militate
against finding the combination proper. Caterpillar
expresses doubt as to whether an optimal design feature
may have the main pivot pin for both jaws also mount the
jaws to the frame in order to effect the quick change
functionality. See J.A. 133 (asserting that the “design
possibilities of the pin structure are severely restricted on
account of its dual function as a swivel bearing and as a
detachable mounting of the jaws, which in turn means
that an optimum design with regard to both desired
functions can be achieved only with very great difficulty, if
at all”) (emphases added)); see also Allied Br. 34 (assert-
ing that “Caterpillar specifically teaches that having both
jaws pivotally mounted to the frame via the main pivot
pin is expected to work poorly”). There is no teaching
away from the combination of Caterpillar and Ogawa
because the combination does not utilize the pivot pin
attachment mechanism of Ogawa. There is no teaching
away in Caterpillar from using the Ogawa feature of two
movable jaws.
In any event, the PTAB grounded its modification of
Caterpillar on Ogawa’s teaching of two movable blades
and “wide range of angular movement.” J.A. 20. Thus,
contrary to Allied’s contention, Ogawa’s disclosure of the
need for two separate cylinders is extraneous to the
PTAB’s decision. According to the PTAB, “the claims of
the ’489 patent [would have been] obvious whether only a
single . . . or two cylinders are used.” J.A. 29.
We have considered Allied’s remaining arguments
and find them unpersuasive.
CONCLUSION
Because we find that substantial evidence supports
the PTAB’s finding of a motivation to combine and that
Caterpillar does not expressly teach away from Ogawa,
ALLIED ERECTING & DISMANTLING CO. 17
v. GENESIS ATTACHMENTS, LLC
we affirm the PTAB’s determination that the ’489 patent
would have been obvious in view of Caterpillar and Oga-
wa. The decision of the United States Patent Trial and
Appeal Board is
AFFIRMED