Henny Penny Corporation v. Frymaster LLC

United States Court of Appeals

for the Federal Circuit

______________________

HENNY PENNY CORPORATION,

Appellant

v.

FRYMASTER LLC,

Appellee

______________________

2018-1596

______________________

Appeal from the United States Patent and Trademark

Office, Patent Trial and Appeal Board in No. IPR2016-

01435.

______________________

Decided: September 12, 2019

______________________

ALLEN MARCEL SOKAL, Potomac, MD, argued for appel-

lant. Also represented by KEVIN W. KIRSCH, Baker &

Hostetler LLP, Cincinnati, OH; DONALD E. BURTON, Faruki

Ireland Cox Rhinehart & Dusing PLL, Dayton, OH.

JOSEPH ALLEN LOY, Kirkland & Ellis LLP, New York,

NY, argued for appellee. Also represented by AARON D.

RESETARITS; EUGENE GORYUNOV, Chicago, IL; JASON M.

WILCOX, Washington, DC.

______________________

Before LOURIE, CHEN, and STOLL, Circuit Judges.

2 HENNY PENNY CORPORATION v. FRYMASTER LLC

LOURIE, Circuit Judge.

Henny Penny Corporation (“HPC”) appeals from the in-

ter partes review decision of the United States Patent and

Trademark Office Patent Trial and Appeal Board (the

“Board”) holding claims 1–3, 5–12, 17–21, and 23 of U.S.

Patent 8,497,691 (the “’691 patent”) not unpatentable as

obvious. Henny Penny Corp. v. Frymaster L.L.C., No.

IPR2016-01435, 2017 WL 6551237 (P.T.A.B. Dec. 21, 2017)

(“Decision”). Because substantial evidence supports the

Board’s findings and the Board properly credited evidence

of secondary considerations, we affirm.

I. BACKGROUND

This case relates to deep fryers. During frying, cooking

oil gradually degrades and loses its cooking capacity, gen-

erating impurities called total polar materials (“TPMs”).

’691 patent col. 1 ll. 25–32. The ’691 patent, owned by ap-

pellee Frymaster LLC, describes a system for measuring

the state of cooking oil degradation with a TPM sensor.

When the sensor detects that TPM levels are too high, the

system instructs the fryer operator to change the oil. See

id. col. 4 ll. 53–55. The purpose of the TPM sensor is to

ensure that oil is neither “wasted by being prematurely

changed” nor “overused thereby tainting food and harming

consumers.” Id. col. 4 ll. 55–57.

Claim 1 of the ’691 patent is representative and identi-

fies two relevant characteristics of the TPM sensor: (1) the

sensor is positioned within an adapter located between

drain and return pipes that circulate oil between the fryer

pot and the sensor; and (2) the sensor “measure[s] an elec-

trical property that is indicative of [TPMs] as the cooking

oil flows past [the] sensor and is returned to [the fryer pot].”

Id. col. 6 ll. 20–37. The claim reads in full as follows:

1. A system for measuring the state of degradation

of cooking oils or fats in a deep fryer comprising:

at least one fryer pot;

HENNY PENNY CORPORATION v. FRYMASTER LLC 3

a conduit fluidly connected to said at least one fryer

pot for transporting cooking oil from said at

least one fryer pot and returning the cooking oil

back to said at least one fryer pot;

a means for re-circulating said cooking oil to and

from said fryer pot; and

a sensor external to said at least on[e] fryer pot and

disposed in fluid communication with said con-

duit to measure an electrical property that is

indicative of total polar materials of said cook-

ing oil as the cooking oil flows past said sensor

and is returned to said at least one fryer pot;

wherein said conduit comprises a drain pipe that

transports oil from said at least one fryer pot

and a return pipe that returns oil to said at

least one fryer pot,

wherein said return pipe or said drain pipe com-

prises two portions and said sensor is disposed

in an adapter installed between said two por-

tions, and

wherein said adapter has two opposite ends

wherein one of said two ends is connected to

one of said two portions and the other of said

two ends is connected to the other of said two

portions.

Id. col. 6 ll. 17–41 (emphases added).

The dispute here arose when HPC, a competitor of Fry-

master, petitioned for inter partes review (“IPR”) of the ’691

patent. The Board instituted review and ultimately held

that the claims are not unpatentable as obvious. The

claimed TPM sensor is central to the two issues on appeal,

which are: (1) whether the Board abused its discretion in

disregarding certain of HPC’s post-institution arguments

about how to incorporate a TPM sensor into a deep fryer;

4 HENNY PENNY CORPORATION v. FRYMASTER LLC

and (2) whether the Board erred in concluding that the

deep fryer system claimed in the ’691 patent would not

have been obvious.

A.

In its petition, HPC challenged claim 1 as obvious over

U.S. Patent 5,071,527 (“Kauffman”) and Japanese Unex-

amined Patent Application Publication No. 2005-55198

(“Iwaguchi”).

Kauffman discloses an apparatus “for the complete

analysis of used oils, lubricants, and fluids,” Kauffman Ab-

stract, for use in equipment such as deep fryers, engines,

and gear boxes, id. col. 8 ll. 10–13. The apparatus employs

an “on-line analysis” to monitor oil quality with an “ana-

lyzer” including an electrode positioned between drain and

return lines connected to a fluid reservoir. Id. col. 6 ll. 24–

25, 45–54. The electrode measures conductivity and cur-

rent, id. col. 2 ll. 60–61, 65–66, and the measurements are

used to monitor undesirable properties such as “antioxi-

dant depletion, oxidation initiator buildup, product

buildup, or liquid contamination, or combinations thereof,”

id. col. 3 ll. 3–6. Monitoring TPMs, however, is nowhere

mentioned. Kauffman indicates that the sample tempera-

ture for on-line analysis can vary between 20–400°C. Id.

col. 7 ll. 26–27.

Iwaguchi, unlike Kauffman, does disclose measuring

TPMs to monitor oil degradation in deep fryers. The refer-

ence notes the disadvantages of other analytes for oil qual-

ity such as peroxide and acid value. Acid value, for

example, “does not readily serve as a direct index of deli-

ciousness and/or safety” because it fails to account for car-

bonyl compounds that are detrimental to oil quality.

Iwaguchi ¶ 4. In contrast, Iwaguchi describes TPMs as

“the standard for freshness” in Europe. Id. The reference

thus discloses an apparatus for measuring TPMs in a deep

fryer.

HENNY PENNY CORPORATION v. FRYMASTER LLC 5

Unlike Kauffman, the Iwaguchi apparatus cools the

cooking oil before detecting TPMs. The frying pot heats oil

to a “high temperature (for example, around 180°C).”

Iwaguchi ¶ 19. To detect TPMs, the apparatus diverts oil

from the frying pot through a “heat dissipator” to a sepa-

rate detection vessel with a TPM detector that uses probes

to measure electrical characteristics of the oil. Id. ¶¶ 20,

24. The heat dissipator “cools the oil . . . and lowers the

temperature of the oil . . . to a given temperature (for ex-

ample, 40°C to 80°C).” Id. ¶ 20. Iwaguchi explains the pur-

pose of the cooling: “[1] to relieve heat stress on the

detector . . . to prevent degradation and . . . [2] to reduce

the capacity of the conversion table” necessary for associat-

ing the oil’s temperature and electrical characteristics with

the amount of TPMs. Id. ¶¶ 20, 25.

HPC advanced a straightforward theory of obviousness

in its petition. It contended that Kauffman expressly dis-

closes each claimed limitation except for the sensor “as it

relates to [TPMs] as well as the specific structural layout

of a fryer pot system.” J.A. 99. The petition further as-

serted that sensors capable of measuring TPMs were

known in the art and that a skilled artisan “could have

readily adapted such sensors for use in the Kauffman sys-

tem if one desired to measure [TPMs].” J.A. 99–100. To

support this argument, the petition only cited Iwaguchi.

According to the petition, Iwaguchi would have motivated

a person of ordinary skill to provide a sensor to measure

TPMs in order to monitor cooking oil degradation. And

“[t]herefore, to the extent Kauffman dose [sic] not disclose

this feature, those skilled in the art wishing to measure to-

tal polar materials in order to accurately determine the

quality of the sensed cooking oil could have modified the

Kauffman system to include the processor and/or sensor as

taught by Iwaguchi.” J.A. 100 (emphasis added).

The Board instituted IPR, concluding that HPC “artic-

ulated a reason with rational underpinnings as to why one

of ordinary skill in the art would have been prompted to

6 HENNY PENNY CORPORATION v. FRYMASTER LLC

modify the teachings of Kauffman by replacing its analyzer

with the sensor of Iwaguchi.” J.A. 390–91 (emphasis

added). Frymaster then filed its patent owner response. It

disputed HPC’s contention that a skilled artisan would

have been motivated to adapt Iwaguchi’s sensor to Kauff-

man’s system, arguing that “integration of Iwaguchi’s tem-

perature sensitive ‘probe’ into Kauffman would not yield a

predictable outcome of measuring oil quality.” Patent

Owner Resp. at 34, Henny Penny Corp. c. Frymaster L.L.C.,

No. IPR2016-01435, Paper No. 29 (P.T.A.B. Mar. 16, 2017).

In reply, HPC argued that integrating Iwaguchi’s TPM

sensor into Kauffman’s system was actually unnecessary.

Rather, HPC contended that Kauffman’s sensor alone is ca-

pable of monitoring TPMs via conductance measurements.

J.A. 569–70; J.A. 571–72. HPC relied on a supposed ad-

mission by Frymaster’s expert at a post-institution deposi-

tion as its only evidentiary support for that capability. Id.

Iwaguchi, according to this theory, was only relevant for

generally teaching the desirability of observing TPMs to

gauge oil quality.

Frymaster objected to HPC’s reply arguments as a new

theory of unpatentability not presented in the petition or

instituted by the Board. At the oral hearing, the Board

pressed HPC to clarify when it first argued that Kauffman

taught a sensor that could be modified to measure TPMs.

Counsel for HPC confirmed that the obviousness combina-

tion presented “in the original petition” was “the idea of

taking [Iwaguchi’s] sensor and incorporating it into Kauff-

man.” J.A. 648-49. Following up, a Board member asked:

“So just swapping the sensor rather than a broader teach-

ing is what you presented in the petition?” J.A. 649. HPC’s

counsel answered, “That’s right, Your Honor.” Id. As for

the position that Kauffman’s sensor itself was capable of

measuring TPMs, HPC’s counsel explained that the theory

was raised in reply based on the deposition testimony of

Frymaster’s expert. J.A. 648–49.

HENNY PENNY CORPORATION v. FRYMASTER LLC 7

B.

After the hearing, the Board issued its final written de-

cision. Because of the apparent differences between the ob-

viousness theories presented in HPC’s petition and reply,

as well as HPC’s counsel’s candid statements confirming

those differences, the Board disregarded HPC’s arguments

based on modifying Kauffman’s sensor to detect TPMs as

an impermissible new theory of unpatentability raised for

the first time on reply. Decision, 2017 WL 6551237, at *5,

*8 (citing 37 C.F.R. § 42.23(b) (“All arguments for the relief

requested in a motion must be made in the motion. A reply

may only respond to arguments raised in the corresponding

opposition, patent owner preliminary response, or patent

owner response.”)). Consistent with its institution deci-

sion, the Board thus addressed whether a person of ordi-

nary skill would have been motivated to integrate

Iwaguchi’s TPM sensor into Kauffman’s system. Id. at *7–

8.

The Board found that a skilled artisan would not have

been so motivated. The Board credited evidence that the

operational temperature of a fryer is between 150–180°C

and found that Iwaguchi taught cooling the oil—for exam-

ple, to 40–80°C—to relieve heat stress on its TPM detector

and reduce the capacity of the conversion table. Id. at *11.

Kauffman, however, did not disclose any means for cooling

the fluid before taking measurements, and the Board found

that adding a diversion and cooling loop to Kauffman, fol-

lowing Iwaguchi, would introduce additional complexity

and inefficiencies into Kauffman’s system. Id. at *10–11.

On balance, the Board found that these disadvantages out-

weighed the uncertain benefits of measuring TPMs instead

of the other oil quality parameters already monitored in

Kauffman. Id. at *11.

Further, the Board found that evidence of secondary

considerations supported nonobviousness. Frymaster sub-

mitted evidence that it marketed a product called the “Oil

8 HENNY PENNY CORPORATION v. FRYMASTER LLC

Quality Sensor” (“OQS”) that won praise from two industry

organizations and one customer. The Board found that

there was a presumption of nexus between the objective ev-

idence and the OQS product because HPC conceded at ar-

gument that claim 1 was commensurate in scope with the

praised product. Id. at *16. The Board also determined

that each award specifically praised the TPM sensor in the

OQS. Id. at *14. While the Board recognized that the in-

dividual claim elements were in the prior art, it found that

the praise was directed to the claimed combination as a

whole. Id. at *16. Accordingly, the Board found that the

two industry awards weighed in favor of patentability, as

did, to a lesser extent, the customer award. Id. at *14, *17.

Considering all the evidence, the Board held that

claim 1 and the other instituted claims Are not unpatenta-

ble as obvious. Id. at *17. HPC appealed. We have juris-

diction under 28 U.S.C. § 1295(a)(4)(A).

II. DISCUSSION

Our review of a Board decision is limited. In re Baxter

Int’l, Inc., 678 F.3d 1357, 1361 (Fed. Cir. 2012). 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 sub-

stantial 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).

HPC makes two arguments on appeal: (1) that the

Board procedurally erred by too narrowly construing the

petition; and (2) that the Board erred in its conclusion of

nonobviousness. We begin with the procedural challenge

and then turn to the issue of obviousness.

HENNY PENNY CORPORATION v. FRYMASTER LLC 9

A.

We review the Board’s decision under 37 C.F.R.

§ 42.23(b) to disregard certain of HPC’s arguments as im-

proper reply arguments for abuse of discretion. Intelligent

Bio-Sys., Inc. v. Illumina Cambridge Ltd., 821 F.3d 1359,

1367 (Fed. Cir. 2016). The Board abuses its discretion if its

decision: “(1) is clearly unreasonable, arbitrary, or fanciful;

(2) is based on an erroneous conclusion of law; (3) rests on

clearly erroneous fact finding; or (4) involves a record that

contains no evidence on which the Board could rationally

base its decision.” Id. (quoting Bilstad v. Wakalopulos, 386

F.3d 1116, 1121 (Fed. Cir. 2004)).

HPC argues that the Board erroneously interpreted the

petition as limited to the physical substitution of Iwagu-

chi’s sensor for Kauffman’s. Physical substitutability, ac-

cording to HPC, is neither required to prove obviousness

nor called for in the petition. On a more general reading of

the petition and the reply, HPC contends that the combi-

nation of Kauffman and Iwaguchi renders claim 1 obvious.

Frymaster responds that HPC’s petition advanced only

the substitution of Iwaguchi’s sensor for Kauffman’s, as

HPC’s counsel attested to the Board. Consequently, Fry-

master argues that the Board was well within its discretion

to disregard HPC’s improper reply arguments.

We agree with Frymaster that the Board did not abuse

its discretion by holding HPC to the obviousness theory in

its petition. Because of the expedited nature of IPR pro-

ceedings, “[i]t is of the utmost importance that petitioners

in the IPR proceedings adhere to the requirement that the

initial petition identify ‘with particularity’ the ‘evidence

that supports the grounds for the challenge to each claim.’”

Id. at 1369 (quoting 35 U.S.C. § 312(a)(3)). Accordingly, an

IPR petitioner may not raise in reply “an entirely new ra-

tionale” for why a claim would have been obvious. See id.

at 1370; 37 C.F.R. § 42.23(b). But that is what HPC did

here.

10 HENNY PENNY CORPORATION v. FRYMASTER LLC

Fairly interpreted, the petition proposed a single obvi-

ousness theory for claim 1: modifying Kauffman’s overall

system “to include the processor and/or sensor as taught by

Iwaguchi” for measuring TPMs. J.A. 100. HPC’s counsel

acknowledged this to the Board. J.A. 648–49 (“So you’re

correct, Your Honor, in the original petition, it was the idea

of taking [Iwaguchi’s] sensor and incorporating it into

Kauffman.”).

On appeal, HPC reads the petition quite differently as

embracing its reply argument that “[o]ne could add the pro-

cessor of Iwaguchi . . . and use the electrical signal from the

sensor of Kauffman as a basis for the processor to calculate

TPMs.” Appellant’s Br. 38. But the petition says nothing

about using Kauffman’s measured electrical parameters to

calculate TPM levels. Nor did HPC submit any expert tes-

timony with its petition about how to do so. 1 And tellingly,

when pressed by the Board on what particular theory was

presented in the petition, HPC’s counsel never argued that

Kauffman implicitly disclosed a TPM sensor, but rather

confirmed that “in the original petition” HPC proposed in-

tegrating Iwaguchi’s sensor into Kauffman’s system. We

conclude that the Board did not abuse its discretion in hold-

ing HPC to its word and disregarding its new theory first

1 The only support HPC identifies for its contention

that Kauffman disclosed a sensor capable of measuring

TPMs comes from the post-institution deposition testimony

of Frymaster’s expert. Counsel asked, “could you use a con-

ductance sensor to derive [TPMs]?” J.A. 1540. Frymaster’s

expert answered that the values could be correlated but

with unknown precision and accuracy. J.A. 1540–41; see

also J.A. 1582–83 (acknowledging that Kauffman meas-

ured conductivity). We are unpersuaded that this deposi-

tion testimony by Frymaster’s expert on what was

theoretically possible sheds meaningful light on the ra-

tionale for obviousness set forth in HPC’s petition.

HENNY PENNY CORPORATION v. FRYMASTER LLC 11

raised in reply. We thus turn to HPC’s separate argument

that, even under the petition’s theory, claim 1 would have

been obvious.

B.

Obviousness is a question of law based on underlying

facts, including the scope and content of the prior art, dif-

ferences between the prior art and the claims at issue, the

level of ordinary skill, and relevant evidence of secondary

considerations. Graham v. John Deere Co. of Kan. City, 383

U.S. 1, 17–18 (1966). Whether a skilled artisan would have

been motivated to combine prior art references is also a

question of fact. Wyers v. Master Lock Co., 616 F.3d 1231,

1238–39 (Fed. Cir. 2010).

HPC argues that the Board made two errors in holding

claim 1 nonobvious. First, HPC contends that the Board

mistakenly found no motivation to combine Iwaguchi’s

TPM sensor with Kauffman’s system. Second, HPC argues

that the Board erred in finding Frymaster’s evidence of in-

dustry praise to be probative of nonobviousness.

Frymaster responds that substantial evidence sup-

ports the Board’s findings on both points.

We agree with Frymaster. With respect to motivation

to combine, HPC argues that the Board placed undue

weight on the disadvantages of introducing Iwaguchi’s

TPM sensor into Kauffman’s system. Relying on our deci-

sion in Winner Int’l Royalty Corp. v. Wang, 202 F.3d 1340

(Fed. Cir. 2000), HPC emphasizes that “[t]he fact that the

motivating benefit comes at the expense of another benefit

. . . should not nullify its use as a basis to modify the dis-

closure of one reference with the teachings of another.” Ap-

pellant’s Br. 33 (quoting Winner, 202 F.3d at 1349 n.8). But

immediately after the sentence quoted by HPC, Winner

continues: “[T]he benefits, both lost and gained, should be

weighed against one another.” 202 F.3d at 1349 n.8 (em-

phasis added). That is consistent with the longstanding

12 HENNY PENNY CORPORATION v. FRYMASTER LLC

principle that the prior art must be considered for all its

teachings, not selectively. See, e.g., Merck & Cie v. Gnosis

S.p.A., 808 F.3d 829, 834 (Fed. Cir. 2015); Panduit Corp. v.

Dennison Mfg. Co., 810 F.2d 1561, 1568 (Fed. Cir. 1987); In

re Pagliaro, 657 F.2d 1219, 1224–25 (CCPA 1981).

The Board’s analysis was consistent with these princi-

ples. The Board recognized that Iwaguchi discloses a TPM

sensor but found that a skilled artisan would have been

dissuaded from integrating Iwaguchi’s sensor into Kauff-

man’s system. Iwaguchi specifically teaches first diverting

the oil through a heat dissipator “to relieve heat stress on

the [TPM] detector . . . to prevent degradation and to re-

duce the capacity of the conversion table,” J.A. 717, but

Kauffman, which is not limited to deep fryers, does not con-

template such cooling or disclose any means for doing so.

The Board credited Frymaster’s expert’s testimony that fol-

lowing Iwaguchi’s method of diverting and cooling the oil

in Kauffman’s system would introduce “additional plumb-

ing and complexity” and lead to “decreased efficiency.” De-

cision, 2017 WL 6551237, at *11. The Board thus found

that a person of ordinary skill would not have been moti-

vated to integrate Iwaguchi’s TPM sensor into Kauffman’s

system. On appeal, HPC argues that a skilled artisan

could have ignored Iwaguchi’s diversion and cooling teach-

ings, integrated only the TPM sensor into Kauffman, and

just tolerated the faster degradation of the sensor. But a

reasonable fact finder could have found these tradeoffs to

yield an unappetizing combination, especially because

Kauffman already teaches a sensor that measures other in-

dicia of oil quality. Considering the prior art as a whole,

we conclude that substantial evidence supports the Board’s

finding of no motivation to combine.

We now turn to the Board’s analysis of Frymaster’s ev-

idence of secondary considerations—specifically, industry

praise. “[E]vidence of secondary considerations may often

be the most probative and cogent evidence in the record.”

Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1538 (Fed.

HENNY PENNY CORPORATION v. FRYMASTER LLC 13

Cir. 1983). However, to be accorded substantial weight in

the obviousness analysis, the evidence of secondary consid-

erations must have a “nexus” to the claims, i.e., there must

be “a legally and factually sufficient connection” between

the evidence and the patented invention. Demaco Corp. v.

F. Von Langsdorff Licensing Ltd., 851 F.2d 1387, 1392

(Fed. Cir. 1988). Ultimately, “[t]he patentee bears the bur-

den of showing that a nexus exists.” WMS Gaming, Inc. v.

Int’l Game Tech., 184 F.3d 1339, 1359 (Fed. Cir. 1999); see

Demaco, 851 F.2d at 1392. To determine whether the pa-

tentee has met that burden, we consider the correspond-

ence between the objective evidence and the claim scope. If

“the asserted objective evidence is tied to a specific product

and that product ‘embodies the claimed features, and is co-

extensive with them,’” then the objective evidence is enti-

tled to a rebuttable presumption of nexus. Polaris Indus.,

Inc. v. Arctic Cat, Inc., 882 F.3d 1056, 1072 (Fed. Cir. 2018)

(quoting Brown & Williamson Tobacco Corp. v. Philip Mor-

ris Inc., 229 F.3d 1120, 1130 (Fed. Cir. 2000)). But when,

for example, the patented invention is only a small compo-

nent of the product tied to the objective evidence, there is

no presumption of nexus. Id.

The Board considered Frymaster’s evidence of two in-

dustry awards. Decision, 2017 WL 6551237, at *14. The

first, the 2015 Kitchen Innovations Award from the Na-

tional Restaurant Association, specifically highlighted the

TPM sensor in Frymaster’s product: “Boasting integrated

oil-quality sensors, a patented technology that automati-

cally monitors the health of the oil by measuring its total

polar materials (TPMs), these gas and electric fryers re-

duce the cost of frying and improve food quality by taking

the guesswork of out [sic] oil replacement.” J.A. 2012. The

second industry award, the 2016 Blue Flame Award Prod-

uct of the Year from the Gas Foodservice Equipment Net-

work Consortium, similarly praised Frymaster’s

“innovative oil quality sensor [which] measures the total

polar material (TPM) contaminants in the oil and advises

14 HENNY PENNY CORPORATION v. FRYMASTER LLC

when the oil needs to be changed, keeping food quality and

customer satisfaction at an all-time high.” J.A. 2134. 2

The Board found that this evidence weighed in favor of

nonobviousness because claim 1 was commensurate in

scope with Frymaster’s praised product. HPC acknowl-

edged as much to the Board. In response to the Board’s

question whether “we all agree that the product praised

and awarded was, in fact, commensurate in scope with the

claims,” HPC’s counsel answered, “I think that’s the case,

sure.” J.A. 676; see Decision, 2017 WL 6551237, at *16.

The Board thus found that Frymaster was entitled to a pre-

sumption of nexus. Decision, 2017 WL 6551237, at *16.

On appeal, HPC does not take issue with this determi-

nation, but instead argues that nexus is lacking because

the object of praise—a deep fryer with an integrated TPM

sensor—was already taught in Iwaguchi. Appellant’s Br.

56–57. It is true, as HPC argues, that “the identified ob-

jective indicia must be directed to what was not known in

the prior art.” Id. at 57 (quoting Novartis AG v. Torrent

Pharm. Ltd., 853 F.3d 1316, 1331 (Fed. Cir. 2017)). But

again, HPC omits an important aspect of this principle:

that “what was not known in the prior art . . . may well be

the novel combination or arrangement of known individual

elements.” Novartis, 853 F.3d at 1331; see WBIP, LLC v.

Kohler Co., 829 F.3d 1317, 1330 (Fed. Cir. 2016) (“[T]he pa-

tent owner can show that it is the claimed combination as

2 In addition to these two industry awards, the

Board also considered an award from Frymaster’s cus-

tomer, McDonald’s. Decision, 2017 WL 6551237, at *14.

Similar to the two industry awards, McDonald’s’ chief en-

gineering officer praised Frymaster’s “built-in Oil Quality

Sensor.” J.A. 2023. The Board gave less weight to this ev-

idence compared to the industry praise, and the parties dis-

cuss it sparingly on appeal. We do not consider it in

reaching our ultimate disposition.

HENNY PENNY CORPORATION v. FRYMASTER LLC 15

a whole that serves as a nexus for the objective evidence;

proof of nexus is not limited to only when objective evidence

is tied to the supposedly new feature(s).” (internal quota-

tion marks omitted)).

That is the case here. The Board determined that

claim 1 is commensurate in scope with Frymaster’s prod-

uct, that the evidence of praise was generally directed to

the claimed invention as a whole, Decision, 2017 WL

6551237, at *16, and that the two industry awards both

specifically praised the claimed integrated TPM sensor, id.

at *14. In contrast, the Board found that Iwaguchi did not

teach the specific claimed combination. Id. at *16. And

contrary to HPC’s argument, the industry praise is proba-

tive of nonobviousness even if it was not precisely limited

to the point of novelty of the claimed combination. See

WBIP, 829 F.3d at 1330. We thus conclude that substan-

tial evidence supports the Board’s findings with respect to

the objective evidence and that the Board did not err in giv-

ing some weight to the industry praise of Frymaster’s deep

fryer product.

Because substantial evidence supports the Board’s

finding of no motivation to combine, and Frymaster’s evi-

dence of secondary considerations supports nonobvious-

ness, we affirm the Board’s ultimate conclusion that claim

1 would not have been obvious over Kauffman and Iwagu-

chi. Since HPC has not argued the other claims separately,

we affirm the Board’s decision with respect to those claims

as well.

CONCLUSION

We have considered HPC’s remaining arguments but

find them unpersuasive. For the foregoing reasons, we af-

firm the Board’s judgment.

AFFIRMED