Federal Circuit Reverses PTAB for Refusing to Allow Supplementation of Record to Add Later Inconsistent Deposition Testimony from an Expert

The Board exercises substantial power over the scope of the record in IPRs, but the Federal Circuit’s decision in Ultratec v. CaptionCall illustrates a limit on that power.  The case involved a collection of consolidated IPR proceedings concerning patents for systems that assist deaf or hard-of-hearing users to make phone calls.  The patents were also the subject of district court litigation between the parties.  In a procedural oddity, the district court trial was completed before the IPR.  The jury found infringement and awarded $44.1 million in damages.  Execution of that judgment was stayed pending the IPR, and five months after the jury’s decision, the PTAB found all challenged claims unpatentable.

The patentee used the same expert in both the PTAB proceedings and the district court litigation.  After the trial, the challenger felt the expert’s district court trial testimony was inconsistent with his testimony in the IPR and sought to supplement the record.  Following its procedure, the Board required a conference call to discuss whether a motion to supplement would be authorized.  As also required by the Board’s rules, that discussion did not include the substance of the testimony that challenger sought to add to the record.  The Board denied the challenger’s request for authorization to file the motion, effectively excluding the trial testimony from the IPR.  The Board did not issue a written order on this point.  Then, in the final written decision, the Board found patentee’s expert credible, including on points where challenger argued that the expert’s trial testimony contradicted his testimony in the IPR.  The Board then denied a motion for reconsideration, addressing the supplemental evidence in a cursory manner.  The net effect of the procedure followed by the Board was to exclude the expert’s trial testimony from the record on appeal too.

The Federal Circuit vacated and remanded, finding that the Board abused its discretion by refusing to entertain a motion to supplement.  First, the court found the challenger satisfied § 42.123(b)’s requirements because the evidence could not have been obtained earlier, and because the Board offered no reasoned basis why allowing this evidence into the record would not be in the interests of justice.  In sum, per the Federal Circuit, a “reasonable adjudicator would have wanted to review this evidence.”

The Federal Circuit added additional criticisms of the Board’s procedures.  First, the Court found that the Board lacked the information necessary to make a reasoned decision, because it would not even look at the evidence sought to be added.  Second, the Court noted the Board’s procedures allowed it to make “significant evidentiary decisions without providing an explanation or a reasoned basis for its decisions,” in contravention of Supreme Court law.  Third, the Court explained the procedures impeded meaningful appellate review, because those procedures set up a situation where evidence that was excluded could not be a part of the appellate record.  The Court also reminded the Board of governing statutory law, noting “To the extent the Board views the two-step process it created to file motions as insulating it from its APA obligations, this is incorrect.”

Although the Courts have largely given the PTAB free reign in creating IPR procedures, this decision, combined with the panel-stacking controversy precipitated by the Federal Circuit’s recent Nidec opinion, may a growing concern at the Federal Circuit with the Board’s use of this freedom.

Federal Circuit Signals that Issue Joinder and Expanded Panels May Not Be Long for the IPR World

A fairly straightforward Federal Circuit decision today, that affirmed a PTAB determination of obviousness, provides insight into a potential reigning in of the PTAB on two issues. In Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co., 2016-2321 (August 22, 2017), Judges Dyk and Wallach filed a concurring opinion that casts some level of doubt on the PTAB’s practices of: 1) construing 35 U.S.C. §315(c) to encompass both party joinder and issue joinder and 2) using expanded panels to decide requests for rehearing.

More specifically, Broad Ocean filed a Petition seeking inter partes review, citing two grounds; the first based on an obviousness argument and the second an anticipation argument. The second ground relied on a Japanese reference, but failed to include the requisite affidavit attesting to the accuracy of the translation of the reference, pursuant to 37 C.F.R. §42.63(b). As such, the Board denied the ground (while instituting an IPR trial on the first ground).

Broad Ocean responded to this denial by filing a second IPR Petition that included the requisite affidavit. Because the second petition was time barred pursuant to 35 U.S.C. §315(b), Broad Ocean included a motion for joinder, pursuant to 35 U.S.C. §315(c), seeking to join the second proceeding with the first.

The original 3-judge panel denied this Petition, finding that §315(b) does not allow a party to join issues to a proceeding to which it is already a party. Broad Ocean filed a request for rehearing of this denial and an expanded board of 5 judges set aside the original panel’s decision, concluding that §315(c) encompasses both party joinder and issue joinder.

This expanded panel then went on to find that the subject patent was unpatentable pursuant to both the first obviousness ground, and the second ground based on the Japanese reference. Nidec appealed both the substance of the decision and the joinder procedure undertaken by the Board. The Federal Circuit affirmed the Board without reaching the joinder issue because it found that the Board correctly determined that the challenged claims were obvious, thus negating the need to reach the procedural issue.

In a concurring opinion authored by Judge Dyk, and joined by Judge Wallach, it was pointed out that the joinder provision of §315(c) is clearly tied to the time bar of §315(b). As such, the justices remarked that “[w]e think it unlikely that Congress intended that petitioners could employ the joinder provision to circumvent the time bar by adding time-barred issues to an otherwise timely proceeding…” Additionally, the justices expressed their “concern” with the PTO’s practice of using an expanded administrative panel to decide requests for rehearing. While the Patent Office argued that the expanded panel is used to ensure uniformity in PTO decisions, the justices questioned “whether the practice of expanding panels where the PTO is dissatisfied with a panel’s earlier decision is the appropriate mechanism of achieving the desired uniformity.”

In the end, the PTAB’s unpatentability determination stands, but a couple of key PTO practices may soon be reversed.

 

Whether You Need to Show Standing Depends on Where You are Standing

The Federal Circuit (CAFC) held in Consumer Watchdog v. WARF, 753 F.3d 1258, 1263 (Fed. Cir. 2014), while one does not need to satisfy Article III standing requirements to prosecute an inter partes re-examination in front of the Patent Trial & Appeal Board (PTAB), if one does not like the PTAB’s decision and one wants to take an appeal to the CAFC, then one does need to satisfy the Article III requirements for standing. If the appellant does not show a concrete and particular injury from the PTAB’s decision, the court will not have jurisdiction to hear the appeal. InConsumer Watchdog, it was the patent challenger (Consumer Watchdog) who had lost in front of the PTAB. Because Consumer Watchdog does not actually make, use, or sell any products or services that might infringe the patent that they were challenging, the CAFC decided that Consumer Watchdog had no standing to appeal the PTAB’s determination that the challenged claims are patentable. The CAFC dismissed Consumer Watchdog’s appeal. The CAFC recently affirmed in Phigenix Inc. v. ImmunoGen Inc., 845 F.3d 1168, 1172 (Fed. Cir. 2017) that the Consumer Watchdog holding applies just as much to inter partes reviews (under the America Invents Act) as it applied to inter partes re-examinations. See alsoPPG Indus. Inc. v. Valspar Sourcing Inc., 679 Fed. Appx. 1002, 1005 (Fed. Cir. 2017).

All of these cases concerning standing in appeals from the PTAB, however, featured one common fact pattern: it was always the patent challenger who was trying to appeal to the CAFC. That is to say, it was an open question whether—in a case where there was no allegation of infringement or likelihood of infringement between two parties—an appeal could proceed where the patent owner had lost in front of the PTAB. The CAFC definitively answered this question in Personal Audio v. Electronic Frontier Fdn., No. 16-1123 (Fed. Cir., Aug. 7, 2017), holding that the patent owner whose claim has been held unpatentable at the PTAB has suffered the sort of concrete, particularized injury that will support standing in an Article III court.

This holding makes intuitive good sense. While Consumer Watchdog had not really lost anything when it failed to get WARF’s patent declared invalid, Personal Audio definitely had lost something (its patent claim!) when the EFF convinced the PTAB to declare certain of Personal Audio’s patent claims unpatentable. It makes sense, in other words, to say that a patent owner has standing to appeal from an adverse PTAB judgment, even if a patent challenger does not.

The other open question in this case was, if there is standing to appeal, is EFF allowed to participate, or does the appeal proceed with only Personal Audio allowed to present its case. The court held that once Article III standing is established, then the appeal proceeds as normal, i.e., with an appellant and a respondent. In other words, EFF was permitted to defend the judgment below, even though EFF had no tangible interest that would have supported the appeal if the PTAB decision had gone the other way. The fact that the EFF (which has no personal interest in the outcome of the case) was allowed to participate suggests that the CAFC will likely hold that the PTO has a right to intervene in PTAB appeals when it considers that question in Knowles Electronics v. Matal, No. 16-1954 (Fed. Cir., Jun. 30, 2017).

For Waterproofing Patent, Arguments Against Obviousness Didn’t Hold Water

The Federal Circuit’s decision in Outdry Technologies Corporation, v. Geox S.P.A. discusses some criteria for determining whether or not the explanations provided by the PTAB in an IPR decision are sufficient to support a finding of motivation to combine.

The independent claims of Outdry Technologies Corp.’s US Patent No. 6,855,171 (“the ‘171 patent”) were found to be obvious during IPR proceedings. Outdry’s ‘171 Patent is directed to two claimed processes for waterproofing leather by “directly pressing,” on an internal surface of the leather, a semi-permeable membrane to which a discontinuous pattern of glue dots has been added. One of the claimed leather waterproofing processes of the ‘171 patent requires the glue dots have a particular density. The other requires that the glue dots have a particular size. According to Outdry, directly pressing the glue dot-bearing membrane onto the leather addressed the problem of water pockets forming between the semi-permeable membrane and the leather when only the edges of the semi-permeable membrane are sown or glued to the leather.

In the IPR decision, the PTAB found the claimed leather waterproofing processes of the ‘171 to be obvious in view of US Patents to Thornton and Hayton, and a reference entitled “Chemistry of the Textiles Industry” (“Scott”), each of which discuss using glue dots, or something similar, to adhere a film or waterproof layer to another layer (e.g., a water permeable layer, like leather).  The PTAB determined that the petitioners for the IPR proceedings, Geox, S.p.A., had provided a rational underpinning for combining Scott and Hayton, and that the claimed leather waterproofing processes of the ‘171 Patent would have been obvious in view of Thornton, Hayton and Scott.

Outdry appealed the PTAB’s IPR decision, arguing, among other things, that the motivation to combine Thornton, Scott and Hayton relied upon by the PTAB during the IPR proceedings was insufficient.

In particular, Outdry argued that the PTAB failed to make the required findings supporting the conclusion that a motivation to combine Thornton, Scott and Hayton existed because the PTAB merely relied on Geox’s petition to find a motivation to combine without making its own findings. The CAFC disagreed. The CAFC listed a number of example reasons for which the findings of the PTAB have previously been determined by the CAFC to be insufficient to support a decision that motivation to combine exists, including: failing to cite any evidence, either in the asserted prior-art references or elsewhere in the record, with sufficient specificity for us to determine whether a person of ordinary skill in the art would have been so motivated; merely stating that a combination is “intuitive” or “common sense,” without articulating a rationale; and simply agreeing with arguments in a petitioner’s brief without making any factual findings. However, the CAFC concluded that the PTAB did not make any of the above-referenced errors by articulating, in the IPR decision, Geox’s arguments explaining the motivation to combine the cited references. Further, the CAFC clarified that a PTAB decision that relies on a petitioner’s arguments and includes an explanation supporting the decision to rely on the petitioner’s arguments is acceptable, unlike a PTAB decision that merely adopts a petitioner’s arguments by reference without providing such an explanation.

Outdry also argued that the PTAB’s finding of a motivation to combine was insufficient because the PTAB failed to explain why a person of ordinary skill in the art would be motivated to combine the cited references to solve the water pocket problem addressed by Outdry’s ‘171 Patent. The CAFC was not persuaded by this argument either. The CAFC responded to this argument by citing previous CAFC decisions indicating that a motivation to combine cited references identified in support of a conclusion of obviousness does not have to match a motivation provided by the patent at issue or the patentee.  The CAFC further explained that the identified motivation does not even have to come from the references, themselves.

Accordingly, in Outdry Technologies, the CAFC confirmed that there are standards the PTAB must satisfy when asserting, in an IPR decision, that a motivation to combine exists. Further, the CAFC also explained that these standards are not quite as strict as the Appellant argued they were.

“Catch-All” Phrases Insufficient To Give Proper Notice of Grounds for Petition

In Emerachem Holdings, LLC v. Volkswagen Group of America, Inc., the Federal Circuit made clear that “catch-all” phrases in a Petition for IPR and/or a Board’s Institution Decision are insufficient to put a patent owner on notice of the specific grounds alleged for unpatentability.

In this case, the Board relied upon the “Stiles” reference as disclosing one of the elements of challenged claims 3, 16 and 20, even though the Petition did not specifically rely upon Stiles for those claims (instead applying Stiles to other challenged claims).  Similarly, the Board’s Institution Decision did not specifically identify Stiles as part of the ground for unpatentability of claims 3, 16 and 20.  Petitioner argued that a broad statement in the Petition that “[c]laims 1-14 and 16-20 are obvious under 35 U.S.C. §103(a) over the combination of Campbell [‘558] and either Hirota or Saito, in view of Stiles” was sufficient to put the Patent Owner on notice.  The Petitioner also argued – as did the PTO, which intervened to defend the Board’s decision – that a similar statement in the Institution Decision was sufficient notice.  The Federal Circuit rejected those arguments, finding that such general statements, particularly in the light of very detailed claim charts that failed to identify Stiles for claims 3, 16 and 20, do not provide sufficient notice.  Therefore, the Patent Owner’s right to notice and an opportunity to respond under the America Invents Act were violated.  The Federal Circuit reversed and remanded.

The Federal Circuit also reaffirmed the need for corroboration when relying upon the testimony of an alleged inventor.  Here, the inventors of the challenged patent each submitted declarations to the effect that they were the sole inventors of the subject matter of an asserted prior art reference on which they were listed inventors along with two other inventors.  Therefore, argued the Patent Owner, the alleged prior art did not qualify under 35 U.S.C. §102(e) because it was not “by another.”  The inventors’ declarations, though, were uncorroborated by any other testimony or documents.  The Federal Circuit reaffirmed that, in many cases, the testimony of an inventor must be corroborated, and that the sufficiency of the corroboration will be determined under the totality of the circumstances.

Earthquake Coming? Supreme Court to Weigh Constitutionality of IPRs

[We have two submissions on this potentially seismic development]

On June 12, the Supreme Court took certiorari on probably the biggest IPR case possible: a case challenging the constitutionality of IPRs on separation-of-powers and seventh amendment grounds. This comes just a few weeks after the Supreme Court took certiorari on SAS Inst. v. Lee. The patent owner in Oil States v. Lee has asked the court to consider whether it violates the separation of powers to have an administrative tribunal (the PTAB) making decisions about patent validity—an issue traditionally entrusted to the Article III courts. The patent owner also wants the Court to consider whether a patentee has a right to a jury trial when issues of validity are at stake. The Court has agreed to consider both questions.

The Court of Appeals for the Federal Circuit (CAFC) faced these same questions in MCM Portfolio v. Hewlett-Packard Co., 812 F.3d 1284 (Fed. Cir. 2015). The CAFC held that it was not problematic to have an administrative tribunal like the PTAB decide issues that are also decided by courts and juries because patents involve “public rights” created by Congress. The logic is that because Congress created patent rights in the first place, Congress can create an agency to decide validity questions. MCM sought certiorari and was denied. Similarly, the patentee in Cooper v. Square sought certiorari after the CAFC summarily dismissed an appeal without opinion. The Court denied certiorari on that case as well. Finally, Oil States Energy Services proved that the third time really is a charm by making many of the same arguments as MCM and Cooper, but this time certiorari was granted.

Suffice it to say, the outcome in this case could be huge. If the Court reverses the CAFC (and the Court usually reverses the CAFC when it takes certiorari), then the entire IPR system could be dismantled at a stroke. On the other hand, if the CAFC were reversed in this case, then SAS Inst. v. Lee would be rather pointless. If one wants to sift tea leaves, then, the fact that the Court also took certiorari in SAS Inst. might suggest that the Court does not have in mind to disassemble the IPR system totally. In any event, HDP will be following this case closely, and keeping readers of this blog up to date with subsequent developments in both cases.

Earthquake Coming? Supreme Court to Weigh Constitutionality of IPRs

[We have two submissions on this potentially seismic development]

It’s no secret that patentees have been generally unhappy with both the process and outcomes of AIA reviews.  Now the Supreme Court has agreed to decide whether the entire AIA review system will be eliminated on constitutional grounds.  That case, Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, involves an IPR proceeding finding several claims of a patent were unpatentable; the Federal Circuit affirmed in a Rule 36 order.  The issue centers around whether patents are a private right—in which case they can only be nullified by an Article III court—or whether they are a public right—in which case they can be adjudicated by an executive agency.  In a different case last, the Federal Circuit declined to consider a similar question en banc.

The specific question the Supreme Court will answer in Oil States is:  “Whether inter partes revew—an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents—violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.

The Supreme Court denied certiorari on two other questions presented, which concerned whether the IPR amendment process is inconsistent with Cuozz, and the degree to which the BRI standard requires consideration of traditional claim construction principles, including reading the claims in light of the specification.

CAFC: What a Person of Skill in the Art “Could” Do is Insufficient Evidence to Support Obviousness Finding

Duke University owns US 7,056,712 (‘712), which claims methods of treating a metabolic disorder known as Pompe disease. In particular, ‘712 claims methods of treating Pompe disease using a recombinant human acid α-glucosidase (hGAA) that is produced using Chinese hamster ovary (CHO) cells. BioMarin petitioned for IPR of ‘712 on two grounds: (1) anticipation by US 7,351,410 (van Bree); and (2) obviousness over WO 97//5771 (Reuser) in view of van Hove et al. (1997). The PTAB found Claims 1–9, 12, 15, 20, & 21 anticipated, and held Claims 1–9, 11, 12, 15, & 18–21 obvious. Duke appealed and the Federal Circuit affirmed in part, and reversed in part in Duke Univ. v. Biomarin Pharm. Inc.2016-1106 (Fed Cir. April 25, 2017).

Regarding anticipation, van Bree teaches administering hGAA to treat Pompe disease, and lists CHO cells as a production system (albeit a disfavored one) for manufacturing the hGAA. Anticipation is a question of fact, and therefore the Federal Circuit (CAFC) only reviews an anticipation finding for substantial evidence. The mention of CHO cells in van Bree—even as a disfavored option—was enough to satisfy the CAFC that anticipation is supported by substantial evidence. The CAFC affirmed the invalidation of Claims 1–8, 12, 15, 20, & 21 for anticipation.

Claim 9, however, was a special case. Claim 9 provides that “the human acid α-glucosidase is a precursor of recombinant human acid α-glucosidase that has been produced in Chinese hamster ovary cell cultures.” The PTAB construed this claim as allowing for mixtures of precursor and full-length hGAA, but the CAFC held that “the human acid α-glucosidase” meant all the hGAA had to be in precursor form. Because van Bree does not mention the precursor form of hGAA, the CAFC reversed the PTAB’s anticipation conclusion for this claim.

For any claim already found anticipated, the CAFC declined to review the PTAB’s obviousness. That meant that the CAFC only had to review the obviousness of Claims 9, 11, 18, & 19. Claims 11 & 18 are dependent claims that had not been argued separately, so in effect the CAFC only had to review obviousness of Claims 9 & 19.

As noted above, the CAFC disagreed with the PTAB’s construction of Claim 9, so the CAFC remanded for reconsideration of obviousness of Claim 9 in view of the new construction. Claim 19 requires that an “immunosuppressant [be] administered prior to any administration of” hGAA. BioMarin had submitted an expert declaration asserting that “[i]f there is a high incidence of patients developing high antibody titers, and immunosuppressant could be administered prophylactically…” (emphasis added). This was the evidence on which the PTAB had relied to show a reasonable expectation of success for Claim 19. The CAFC considered that the fact that the person of ordinary skill could do something is not enough to establish obviousness. Rather, testimony was necessary as to what the person of ordinary skill would do. The CAFC considered that BioMarin’s expert declaration was not substantial evidence necessary to support a reasonable expectation of success. Therefore, the holding of obviousness for Claim 19 was reversed.

The most important take-away from this case is that expert declarations should avoid talking about what the person of ordinary skill “could” do. Instead, declarations should speak of what the person of ordinary skill “would” do, or “did” do.

Supreme Court to Hear Another IPR Case — SAS Institute v. Lee

The Supreme Court has granted certiorari in another inter partes review dispute, this time in SAS Institute v. Lee.  The Court will decide whether the PTAB may properly institute partial review (i.e., institute review on less than all claims in a challenged patent).  The PTAB’s rules—particularly 37 C.F.R. § 42.108(a)—allow the Board to “authorize the review to proceed on all or some of the challenged claims and on all or some of the grounds of unpatentability asserted for each claim.”  However, the statute—particularly 35 U.S.C. § 318(a)—requires that, if review is instituted, then the “Board shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner….”  The question for the Supreme Court is whether the Board’s partial review option is allowed by this statutory provision.

The Court’s decision will impact the application of IPR estoppel, because estoppel only attaches after review is instituted, and—under the current law—does not apply to claims for which review is not instituted.  If the PTAB is required to issue a final written decision for all claims after review is instituted, then estoppel would affect more claims than under the current state of the law.

PTAB Provides Another Estoppel Datapoint — No Estoppel for Petitioner Using Its Own Documents

In Inter Partes Review (IPR) proceedings, the estoppel provision of 35 U.S.C. § 315(e)(1) prevents the petitioner from challenging the validity of a patent in an IPR on any “ground that the petitioner raised or reasonably could have raised” in an earlier IPR that resulted in a final written decision.  When deciding estoppel issues under 35 U.S.C. § 315(e)(1), the Patent Trial and Appeal Board (PTAB) and courts analyze whether “a skilled searcher conducting a diligent search reasonably could have been expected to discover” the prior art in question.

Recently, in Johns Manville Corp. v. Knauf Insulation, Inc., IPR2016-00130, (P.T.A.B., May 8, 2017) (non-precedential), the PTAB considered an estoppel issue involving the petitioner’s own prior art: two of John Manville’s (JM) marketing brochures.  The patent owner, Knauf, raised the issue of estoppel because JM did not include the marketing brochures as grounds in an earlier IPR, Johns Manville Corp. v. Knauf Insulation, Inc., IPR2015-01453, (P.T.A.B., Jan. 11, 2017) (non-precedential), which resulted in a final written decision and involved the same patent.

This case presents an interesting estoppel question because one might expect the PTAB to place more scrutiny on the petitioner when the prior art at issue is from the petitioner instead of a third party; however, the PTAB Panel in IPR2016-00130 did not change the approach for analyzing IPR estoppel just because the prior art was from JM instead of a third party.

Knauf argued that a reasonable search should have found JM’s marketing brochures before filing IPR2015-01453 because thousands of copies of the marketing brochures had been distributed, and one of JM’s employees, Mr. Mota, had hard copies of the marketing brochures before IPR2015-01453 was filed.  Also, Knauf argued that a skilled searcher should have interviewed Mr. Mota and researched historic versions of the accused products before IPR2015-01453 was filed.

However, JM’s arguments persuaded the PTAB that a skilled and diligent searcher could not have been expected to discover the marketing brochures before JM filed IPR2015-01453.  JM explained the professional searcher it hired to search Internet archives did not find the marketing brochures because the brochures were never posted on-line.   Also, Mr. Mota’s possession of the marketing brochures violated JM’s 7-year document retention policy.  JM also argued that Mr. Mota’s records were disorganized and in hardcopy binders so a skilled searcher could not reasonably have been expected to locate them.

Additionally, JM persuaded the PTAB that a skilled and diligent search would not necessarily include interviewing Mr. Mota before filing IPR2015-01453.  Because Mr. Mota did not work in a division that made the product accused of infringing Knauf’s patent, JM’s counsel argued that it would not have made sense to interview Mr. Mota before filing IPR2015-01453.  JM’s explanation for interviewing Mr. Mota after filing IPR2015-01453 was because Mr. Mota by that time had switched to a division that made the allegedly-infringing product.

In the PTAB’s view, Knauf’s arguments would have extended 35 U.S.C. § 315(e)(1) estoppel to all references that JM “reasonably should have known” about, based on imputing the knowledge and document possession of Mr. Mota to the entire JM organization.  The PTAB was unwilling to extend the scope of estoppel that far because the PTAB determined the “reasonably could have discovered” language in 35 U.S.C. § 315(e)(1), and legislative history of 35 U.S.C. § 315(e)(1), suggested a narrower interpretation of IPR estoppel.   

Even though the Knauf did not get its way on the estoppel issue, Knauf still prevailed on the bigger issue: the PTAB upheld the validity of Knauf’s patent in IPR2016-00130.  This case is useful for showing the approach the PTAB may take when deciding whether IPR estoppel applies to the petitioner’s own documents.