Cywee Group Ltd. v. Google LLC

Case: 20-1565 Document: 96 Page: 1 Filed: 03/16/2021

NOTE: This disposition is nonprecedential.

United States Court of Appeals

for the Federal Circuit

______________________

CYWEE GROUP LTD.,

Appellant

v.

GOOGLE LLC, SAMSUNG ELECTRONICS CO.,

LTD., LG ELECTRONICS INC., HUAWEI DEVICE

USA, INC., HUAWEI DEVICE CO., LTD., HUAWEI

TECHNOLOGIES CO., LTD., HUAWEI DEVICE

(DONGGUAN) CO., LTD., HUAWEI INVESTMENT &

HOLDING CO. LTD, HUAWEI TECH. INVESTMENT

CO. LTD., HUAWEI DEVICE (HONG KONG) CO.

LTD.,

Appellees

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

______________________

2020-1565, 2020-1567

______________________

Appeals from the United States Patent and Trademark

Office, Patent Trial and Appeal Board in Nos. IPR2018-

01257, IPR2018-01258.

Case: 20-1565 Document: 96 Page: 2 Filed: 03/16/2021

2 CYWEE GROUP LTD. v. GOOGLE LLC

______________________

Decided: March 16, 2021

______________________

JAY P. KESAN, DiMuroGinsberg PC, Tysons Corner,

VA, argued for appellant. Also represented by CECIL E.

KEY, HENNING SCHMIDT; WILLIAM D. ELLERMAN, ARI

RAFILSON, MICHAEL W. SHORE, Shore Chan DePumpo LLP,

Dallas, TX.

MATTHEW A. SMITH, Smith Baluch LLP, Menlo Park,

CA, argued for all appellees. Appellee Google LLC also rep-

resented by ELIZABETH LAUGHTON; ANDREW BALUCH,

Washington, DC.

NAVEEN MODI, Paul Hastings LLP, Washington, DC,

for appellee Samsung Electronics Co., Ltd. Also repre-

sented by CHETAN BANSAL.

ANDREW V. DEVKAR, Morgan Lewis & Bockius LLP,

Santa Monica, CA, for appellee LG Electronics Inc. Also

represented by NATALIE A. BENNETT, Washington, DC;

JEREMY DEANE PETERSON, PV Law LLP, Washington, DC.

KRISTOPHER L. REED, Kilpatrick Townsend & Stockton

LLP, Denver, CO, for appellees Huawei Device USA, Inc.,

Huawei Device Co., Ltd., Huawei Technologies Co., Ltd.,

Huawei Device (Dongguan) Co., Ltd., Huawei Investment

& Holding Co. Ltd, Huawei Tech. Investment Co. Ltd.,

Huawei Device (Hong Kong) Co. Ltd. Also represented by

BENJAMIN MAX KLEINMAN, STEVEN MOORE, San Francisco,

CA.

MICHAEL S. FORMAN, Office of the Solicitor, United

States Patent and Trademark Office, Alexandria, VA, ar-

gued for intervenor. Also represented by THOMAS W.

Case: 20-1565 Document: 96 Page: 3 Filed: 03/16/2021

CYWEE GROUP LTD. v. GOOGLE LLC 3

KRAUSE, FARHEENA YASMEEN RASHEED, MEREDITH HOPE

SCHOENFELD.

______________________

Before PROST, Chief Judge, TARANTO and CHEN, Circuit

Judges.

PROST, Chief Judge.

Google LLC (“Google”) petitioned for inter partes re-

view (“IPR”) of claims 1 and 3–5 of U.S. Patent

No. 8,441,438 (“the ’438 patent”) and claims 10 and 12 of

U.S. Patent No. 8,552,978 (“the ’978 patent”), asserting

that the challenged claims are unpatentable as obvious.

Each of Google’s prior art combinations relied on Bach-

mann. 1 The Patent Trial and Appeal Board (“Board”) in-

stituted IPR and agreed with Google that the challenged

claims would have been obvious. Google LLC v. CyWee

Grp. Ltd., No. IPR2018–01257, Paper 87 (P.T.A.B. Jan. 9,

2020) (“’978 Decision”); Google LLC v. CyWee Grp. Ltd.,

No. IPR2018–01258, Paper 86 (P.T.A.B. Jan. 9, 2020)

(“’438 Decision”). CyWee Group Ltd. (“CyWee”) appeals.

We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A).

We affirm.

DISCUSSION

CyWee raises three challenges on appeal. First, Cy-

Wee argues that the Board erred in concluding that Google

disclosed all real parties in interest as required by

35 U.S.C. § 312(a)(2). Second, CyWee contends that the

IPR proceedings should be terminated because all the rul-

ings were made by administrative patent judges (“APJs”)

who were unconstitutionally appointed in violation of the

Appointments Clause, U.S. CONST. art. II, § 2, cl. 2. And

third, CyWee argues that the Board erred in concluding

1 U.S. Patent No. 7,089,148.

Case: 20-1565 Document: 96 Page: 4 Filed: 03/16/2021

4 CYWEE GROUP LTD. v. GOOGLE LLC

that Bachmann is analogous prior art with respect to the

challenged patents. We address these arguments in turn.

I

First, CyWee contends that the Board erred in conclud-

ing that Google met the real-party-in-interest disclosure

obligations of § 312(a)(2).

We are precluded from reviewing this challenge. In

ESIP Series 2, LLC v. Puzhen Life USA, LLC, 958 F.3d

1378, 1386 (Fed. Cir. 2020), we concluded that “the Board’s

§ 312(a)(2) real-party-in-interest determination is final

and non-appealable” under 35 U.S.C. § 314(d) because it

“raises an ordinary dispute about the application of an in-

stitution-related statute.” Id. (internal quotation marks

omitted); see also Thryv, Inc. v. Click-to-Call Techs., LP,

140 S. Ct. 1367, 1373–74 (2020); Cuozzo Speed Techs., LLC

v. Lee, 136 S. Ct. 2131, 2139 (2016).

CyWee attempts to distinguish this case from ESIP on

the basis that here, CyWee does not specifically challenge

the Board’s decision on institution but rather the Board’s

denial of CyWee’s post-institution motion to terminate the

proceedings in view of newly discovered evidence. But that

motion amounted to nothing more than a request for the

Board to reconsider its institution decision. The Board’s

decision on such a request is “final and nonappealable” un-

der § 314(d). See, e.g., Medtronic, Inc. v. Robert Bosch

Healthcare Sys., Inc., 839 F.3d 1382, 1384–85 (Fed. Cir.

2016); GTNX, Inc. v. INTTRA, Inc., 789 F.3d 1309, 1312

(Fed. Cir. 2015).

CyWee also argues that the Board erroneously denied

CyWee additional discovery, but the additional discovery

CyWee seeks relates solely to whether Google met its obli-

gations under § 312(a)(2). CyWee makes no argument for

reviewability of the Board’s discovery ruling if the Board’s

ruling that Google met its § 312(a)(2) burden is unreview-

able. Under these circumstances, CyWee’s challenge to the

Case: 20-1565 Document: 96 Page: 5 Filed: 03/16/2021

CYWEE GROUP LTD. v. GOOGLE LLC 5

Board’s discovery ruling is a subcomponent of its broader

challenge to the Board’s § 312(a)(2) determination and is

therefore similarly unreviewable.

II

Next, CyWee argues that we should terminate and dis-

miss the IPR proceedings with prejudice because the APJs

who handled the IPR were appointed in violation of the Ap-

pointments Clause.

Because the APJs were constitutionally appointed as of

the date this court issued Arthrex, Inc. v. Smith & Nephew,

Inc., 941 F.3d 1320 (Fed. Cir. 2019), and because Arthrex

issued before the final written decisions in this case, those

decisions were not rendered by unconstitutional panels.

See, e.g., Caterpillar Paving Prods. Inc. v. Wirtgen Am.,

Inc., 957 F.3d 1342, 1342–43 (Fed. Cir. 2020); Document

Sec. Sys., Inc. v. Nichia Corp., 813 F. App’x 599, 600

(Fed. Cir. 2020); see also Arthrex, 941 F.3d at 1340 (ex-

plaining that its holding extended to “cases where final

written decisions were issued”). We therefore reject Cy-

Wee’s Appointments Clause challenge.

III

Finally, CyWee contends that substantial evidence

does not support the Board’s conclusion that Bachmann is

analogous art with respect to the ’978 and ’438 patents. We

disagree.

The Board’s conclusion stems from two key findings,

both of which are supported by substantial evidence. First,

the Board determined that “improving error compensation

with an enhanced comparison method” was of “central im-

portance” to the inventors. ’978 Decision, at 58; ’438 Deci-

sion, at 29. This finding is supported by substantial

evidence, including the patents’ specifications, CyWee’s

own characterization of the patents, and expert testimony.

See, e.g., ’978 Decision, at 56–58; ’438 Decision, at 28–29.

Second, the Board found that Bachmann was reasonably

Case: 20-1565 Document: 96 Page: 6 Filed: 03/16/2021

6 CYWEE GROUP LTD. v. GOOGLE LLC

pertinent to this problem, as Bachmann “illustrates collec-

tion of data from the same kinds of sensors” and “correct[s]

for the same kinds of errors that were of concern to the in-

ventor[s].” ’978 Decision, at 59; ’438 Decision, at 31. This

finding is also supported by substantial evidence. See, e.g.,

’978 Decision, at 59–60; ’438 Decision, at 31. Accordingly,

substantial evidence supports the Board’s conclusion that

Bachmann is analogous art as it is “reasonably pertinent

to the particular problem with which the inventor is in-

volved.” In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004).

CyWee counters that the Board’s determination is in-

consistent with its finding that the “field of 3D Pointing

Devices presents distinct problems that technology such as

that disclosed in [Bachmann] cannot address.” Appellant’s

Br. 64–65 (quoting ’978 Decision, at 54–55). But the Board

made no such finding. Rather, the Board acknowledged

that CyWee contended as much; the Board did not opine on

whether that contention was correct. ’978 Decision, at 54–

55; ’438 Decision, at 26. In any event, a reference need not

be reasonably pertinent to every problem facing a field to

be analogous prior art, but rather need only be “reasonably

pertinent to one or more of the particular problems to

which the claimed inventions relate.” Donner Tech., LLC

v. Pro Stage Gear, LLC, 979 F.3d 1353, 1361 (Fed. Cir.

2020).

CyWee also argues that Bachmann “does not even ad-

dress . . . the [essential] problem of ‘mapping’ the orienta-

tion and movement of the 3D pointing device to a

movement pattern on a 2D display.” Appellant’s Br. 72.

But, as just stated, a reference need only be reasonably per-

tinent to “one or more of the particular problems to which

the inventions relate,” not to each and every problem facing

the inventors. See Donner, 979 F.3d at 1359, 1361. Even

if mapping is a “part of the relevant problem with which

the inventors were involved,” substantial evidence sup-

ports the Board’s analogous art determination that error

compensation was of “central importance” to the inventors,

Case: 20-1565 Document: 96 Page: 7 Filed: 03/16/2021

CYWEE GROUP LTD. v. GOOGLE LLC 7

and that Bachmann—which relates to error compensa-

tion—therefore “logically would have commended itself to

the inventor’s attention.” See ’978 Decision, at 59; ’438 De-

cision, at 31. In fact, the Board went so far as to say that

even if mapping was a part of the relevant problem, it was

at most “a relatively minor part” of that problem. See ’978

Decision, at 59; see also ’438 Decision, at 30–31 (explaining

that “mapping is not an essential part of the problem with

which the inventors were involved”).

Furthermore, CyWee identifies a number of purported

differences between Bachmann and the challenged patents

in an attempt to undermine the Board’s analogous art de-

termination. But “a reference can be analogous art with

respect to a patent even if there are significant differences

between the two references.” Donner, 979 F.3d at 1361.

“Indeed, there will frequently be significant differences be-

tween a patent and a reference from a different field of en-

deavor.” Id. What matters is whether these differences

support a determination that the reference is not reasona-

bly pertinent to a problem to which the claimed inventions

relate. Id. We have considered CyWee’s arguments, and

none of them disturbs our determination that substantial

evidence supports the Board’s conclusion that Bachmann

is analogous art with respect to the challenged patents.

CONCLUSION

We have considered CyWee’s remaining arguments but

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

firm the Board’s determination that the challenged claims

would have been obvious.

AFFIRMED