USPTO Considers Replacing Broadest Reasonable Interpretation Standard in IPRs and PGRs

In widely publicized comments to the US Chamber of Commerce last April, new USPTO Director Iancu encouraged stakeholders in IPR and PGR proceedings to “reduce the hyperbole and look at the process with fresh eyes, in order to understand its true benefits and true challenges. This is what we are now doing at the USPTO.

Well, those fresh eyes did not take long to produce potential changes. Today, the USPTO provided notice of proposed rulemaking regarding potential changes to the claim construction standard for interpreting claims in trial proceedings before the PTAB. Specifically, May 9, 2018 opens a 60-day comment period regarding a potential change to PTAB rules to replace the broadest reasonable interpretation standard (“BRI”) with the standard that is applied in federal district court and ITC proceedings.

In addition, the USPTO proposes to amend the PTAB rules to add that the PTAB will consider any prior claim construction determination concerning a claim at issue. That includes prior determinations in civil actions, ITC proceedings, or prior PTAB trial proceedings.

In the comments accompanying the potential rule change, the USPTO cites the following factors as underlying the effort to reconsider the claim construction standard in PTAB proceedings:

  1. Minimizing differences between PTAB proceedings and other patent proceedings could lead to greater uniformity and predictability of the patent grant;
  2. Using the same standard could help increase judicial efficiency overall;
  3. The high degree of overlap between patents that are considered at the PTAB and those that are the subject of federal litigation favors using a consistent claim construction standard; and
  4. Increase fairness by eliminating the situation where a patent claim could be found unpatentable in a PTAB proceeding on account of a claim scope that the patent owner could not assert in the federal courts.

To be sure, this notice does not mean that the claim construction standard will be changed. But, the fact that the notice was provided, as well as the overall tenor of its contents, leaves one with the strong impression that the USPTO is leaning towards this change.  Let the roller coaster ride continue!

Partial Institution Decisions Go, as IPR Proceedings in General are Here to Stay

As we mentioned, it has been a big day at the Supreme Court for patent law and, in particular, Inter Partes Reviews. This post addresses the second of two Supreme Court rulings issued today. In the first decision, discussed HERE, the Court ruled that IPRs are constitutional. Oil States Energy Services, LLC v. Greene’s Energy Grp., LLC, No. 16-712 (April 24, 2018). This post addresses the second decision, wherein the Court has overruled the PTAB’s regulation and practice that allowed it to issue partial institution decisions, sending only some claims, but not necessarily all, when instituting an IPR trial. SAS Institute Inc. v. Iancu, No. 16-969 (April 24, 2018).

SAS Institute was a closer decision than Oil States, with Justice Gorsuch writing the 5-4 majority opinion that was joined by the other, traditionally conservative Justices (Roberts, Kennedy, Thomas, and Alito). The majority opinion rests generally on the fact that the language of the statute that implements IPR is quite clear and straightforward – thus, it is the Petitioner’s petition, and not the Director’s discretion, that guides the life of an IPR. More seasoned Supreme Court commentators can better analyze the reasons for the conservative/liberal split on a typically apolitical  patent matter, but it may boil down to the fact that the conservative justices saw no ambiguity in Congress’s intent, and issued a decision upholding that intent, while the liberal block sought to give this government agency more discretion and leeway. One certainly gets the sense that the justices were looking beyond this specific patent issue in framing their approaches to statutory interpretation. To that end, a larger potential impact of this decision, the abandonment of Chevron deference, as was argued by SAS Institute, was an issue the Court left for another day.

What does the future hold (in the IPR world, not the statutory construction world)? Certainly, we will no longer see decisions to institute whereby some claims are included in an IPR trial and some claims are left out. The Court’s opinion is clear that this practice is over. But, what is to be made of the PTAB’s practice of denying redundant grounds? In SAS Institute, the Court criticized 37 CFR § 42.108(a), which states that “[w]hen instituting inter partes review, the [Director] may 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.” (emphasis added). The vast majority of the opinion discusses the fact that the restriction on the first underlined clause above to “some” of the claims is incorrect. The opinion found this error to be clear in light of the fact that it is the Petitioner’s petition, and not the Director’s discretion, that dictates the life of an IPR. Shouldn’t that same rationale apply to the grounds set forth in a petition? There has been significant grumbling about the Board’s redundant grounds practice – that may be one of the next issues the Supremes consider as they closely monitor inter partes review proceedings.

IPRs Are Here to Stay, But Partial Institution Decisions Are a Thing of the Past

It is a big day at the Supreme Court for patent law and, in particular, Inter Partes Reviews. In the first of two decisions, the Court has ruled that IPRs are constitutional, casting aside a challenge to the very existence of the proceeding. Oil States Energy Services, LLC v. Greene’s Energy Grp., LLC, No. 16-712 (April 24, 2018). In the second decision, the Court has overruled the PTAB’s regulation and practice that allowed it to issue partial institution decisions, sending only some claims, but not necessarily all, when instituting an IPR trial. SAS Institute Inc. v. Iancu, No. 16-969 (April 24, 2018). This post addresses the Oil States decision, with a subsequent blog post HERE to discuss SAS Institute.

In Oil States, Justice Thomas wrote the opinion for the Majority, with Justice Gorsuch writing a dissent to which Justice Roberts joined. In general, the majority found that IPR is simply the government’s reconsideration of its earlier decision to grant a public franchise. Indeed, there was no dispute about the fact that the decision to grant a patent is a matter involving public rights. Since IPR is just an offshoot of that original grant, namely the reconsideration of that grant, IPR is also a matter involving public rights. Thus, except for an academic stroll through 200+ years of jurisprudence, there is not much practical information in the majority’s opinion. It is notable, however, that the majority expressly states that its holding is a narrow one. For example, the Court states that it has not: 1) considered whether infringement actions can be heard in a non-Article III form, 2) considered whether retroactive application of IPR is inappropriate, or 3) suggested that patents are not property for purposes of the Due Process Clause or the Takings Clause. Id. at 16-17.

Given some of the issues raised during oral argument, including “stacking” of Board panels, etc., it may be considered by some surprising that the Court did not offer at least some hints as to the future of IPR. Instead, some of those hints were relegated to the Gorsuch dissent. Citing the strong need for an independent judiciary to hear cases of this nature, the dissent paints a biased picture of IPR proceedings. For example, the dissent points out that the proceedings are: 1) overseen by a Director who serves at the pleasure of the President; 2) the Director oversees and pays Board members; 3) the Director selects which members, and how many, hear a particular challenge, and 4) if the Board members come to a conclusion that the Director does not like, the Director can add more members and order the case reheard (citing Nidec Motor Corp.). In short, the dissent characterizes IPR proceedings as a retreat from the promise of judicial independence – the type of independence that is immune from “[p]owerful interests…capable of amassing armies of lobbyists and lawyers to influence (and even capture) politically accountable bureaucracies.” Id. at 3. In the end, the dissent sounded a warning to the relinquishment of judicial authority to the other government branches: “Ceding to the political branches ground [the Article III Courts] wish to take in the name of efficient government may seem like an act of judicial restraint. But enforcing Article III isn’t about protecting judicial authority for its own sake. It’s about ensuring the people today and tomorrow enjoy no fewer rights against government intrusion than those who came before.”

District Court Orders Petitioner to Seek Termination of IPR based on Forum Selection Clause

A recent case from California reminds patent owners that forum selection clauses can be an important anecdote for PTAB proceedings. In Dodocase VR, Inc. v. MechSource, LLC, 3:17-cv-07088-EDL (N.D. Ca.), the district court ordered defendant/IPR Petitioner to seek termination of an IPR proceeding based on a license agreement entered into between patent owner and defendant.

More specifically, Dodocase VR sued MerchSource for patent infringement.  The parties had previously executed a “Master License Agreement” that contained a no-challenge clause and a forum selection clause.  The no-challenge clause required that “MerchSource shall not (a) attempt to challenge the validity or enforceability of the Licensed IP; or (b) directly or indirectly, knowingly assist any Third Party in an attempt to challenge the validity or enforceability of the Licensed IP except to comply with any court order or subpoena.”  The forum selection clause stated “The parties agree…that disputes shall be litigated in the courts in San Francisco County or Orange County, California.”

After unsuccessful settlement discussions, defendant MerchSource filed IPR petitions regarding the asserted patents.  Patent Owner Dodocase the moved for a preliminary injunction to stop the IPRs, based on both the license’s no-challenge clause and the forum selection clause.

The Court declined to enforce the no-challenge clause, based on Lear v. Adkins, 395 U.S. 653 (1969) and on principles of equity.

The Court did, however, find the forum selection clause applied, and granted the injunction on that basis.  Addressing the controlling factors under Ninth Circuit law, the Court determined the forum selection clause was enforceable and that its scope included PTAB proceedings, and thus that Plaintiff was likely to succeed on the merits of the contract issue.  The Court found Plaintiff would be irreparably harmed by having to fight validity on two fronts, and that the equities favored Plaintiff.  To this last point, the Court rejected Defendant’s argument that an injunction would forever preclude its ability to pursue an IPR (given the one-year bar), because, under applicable law, Defendants “should not be heard to argue that the enforcement of the contract into which it freely entered would cause hardship.”  Finally, the Court found the public interest favored enforcement of the contract.

As to relief, the Court recognized the practicalities of dismissing an IPR.  The Court required the Defendant to first email the PTAB to seek permission to move to withdraw, and then by a date certain file a motion upon receiving such permission.  The Court also included relatively detailed instructions as to how the Defendant could characterize the Court’s order to the PTAB (i.e., Defendant could say the injunction was granted over its objection, that it plans to appeal, and that it is moving to withdraw only to comply with the Court’s order, but Defendant could not say the Court entered a “partial stay” or that it was moving to withdraw “under protest.”).

Defendant quickly filed an appeal to the Federal Circuit, so stay tuned for further developments.

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.

Federal Circuit Swats Appeal in View of Patent Owner Failures

In the recent decision in Securus Technologies, Inc. v. Global Tel*Link Corporation, the Court of Appeals for the Federal Circuit (CAFC) addressed a number of issues, a couple of which are worth noting as potential pitfalls for a Patent Owner in an inter partes review (IPR) proceeding.

Securus is the result of consolidation of two appeals from Final Written Decisions from the PTAB in IPRs stemming from petitions with respect to Patent Owner’s U.S. Patent No. 7,860,222 (“ the ‘222 Patent”).  The independent claims at issue in the ‘222 Patent were generally directed to a system (and method) for allowing a user to establish bookmarks at “events of interest” in communications between individuals by searching the communications to identify particular words, and placing event identifiers in association with the identified words.

As one premise for appeal, Patent Owner argued that the PTAB’s conclusion that independent claim 1 was obvious over the prior art impermissibly relied on an argument raised for the first time in Petitioner’s Reply.  In presenting this argument, however, Patent Owner did not argue that such reliance was prejudicial in any way, nor did Patent Owner argue that they were not afforded a meaningful opportunity to respond.  Rather, Patent Owner argued that the PTAB’s reliance was improper simply because Petitioner did not advance the specific argument in its petition.

As one might expect, the CAFC did not find Patent Owner’s argument persuasive since Patent Owner had not shown that the PTAB’s decision rested on any factual or legal argument for which it was denied notice or an opportunity to be heard during the proceedings.  The CAFC also made a point to note that Patent Owner failed to avail themselves to any procedure for filing a sur-reply, motion to strike, or challenging the allegedly improper argument via conference call.

Patent Owner also appealed the PTAB’s denial of motions to amend seeking to change the antecedent basis for six dependent claims.  However, these motions seemed doomed from the start since the Patent Owner admitted numerous times (14 times in two motions) that the changes were not made in response to a ground of unpatentability raised in the IPRs – a specific ground for denial of an amendment set forth in 37 C.F.R. § 42.121(a)(2)(i).

In sum, a couple of swings-and-misses for the Patent Owner who could have spent a bit more time with the PTAB rule book.

Federal Circuit is No Place to Make New Claim Construction Arguments

The Federal Circuit has consistently made clear that arguments not first made to the PTAB will not be considered on appeal. Google fell victim to this well-worn concept in Google Inc. v. SimpleAir, Inc., 2016-1901 (CAFC March 28, 2017), wherein the Federal Circuit decided, in a non-precedential opinion, that Google waived a claim construction argument that was not first presented to the Board. The Court also denied Google’s backup argument that, even under the Board’s claim construction, the art rendered the challenged claims unpatentable.

Regarding the waiver issue, the Court gave context to the dispute by noting that the term at issue, “central broadcast server,” had been construed in three prior district court litigations. In each instance, the courts adopted a definition of the term that was identical to the construction ultimately applied by the PTAB. Although Google filed its IPR against the backdrop of those district court constructions, Google provided the Board with the district court definitions of the term, without offering any other suggested construction. Id. at 5-6 (“Google did not…insist or even request that the PTAB apply a differing construction.”). Google further conceded, at oral argument, that the district court constructions constituted the broadest reasonable interpretation in the IPR proceeding. As such, the claim construction argument Google attempted on appeal was deemed waived.

Regarding Google’s backup plan, the Court quickly dispatched with Google’s arguments, describing them as a “mischaracterization of the PTAB’s ruling, in attempt to create legal error.” Id. at 10.

In sum, this decision reminds Petitioners of the need to carefully weigh the entire record and choose their claim construction positions wisely. While it is hard to know all the litigation considerations that were present in this case, the BRI standard could have been a helpful distinction from the insufficient district court constructions to defeat the challenged claims.

Federal Circuit Reins in PTAB’s Use of CBM Reviews

GavelIn Unwired Planet, LLC v. Google Inc., Case No. 2015-1812 (Fed. Cir. November 21, 2016), the Federal Circuit rejected the PTAB’s broad application of CBM reviews to claims that are merely “incidental” or “complementary” to financial activity:  “We hold that the Board’s reliance on whether the patent claims activities ‘incidental to’ or ‘complementary to’ a financial activity as the legal standard to determine whether a patent is CBM patent was not in accordance with law.”  Going forward, the breadth of patents for which the PTAB institutes CBM trials will be less extensive than in the past.

The America Invents Act (“AIA”) permits a Covered Business Method (“CBM”) review to be instituted only for a “covered business method patent,” which the AIA defines as “a patent that claims a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service, except that the term does not include patents for technological invention.”  AIA § 18(d)(1).  The PTO adopted this definition of a “covered business method patent,” without elaboration, by regulation.  37 C.F.R. §42.301(a).

The challenged patent in this case was directed to a system that allows users of wireless devices (e.g., cell phones) to set “privacy preferences” that determine whether “client applications” can access their device’s location information.  The patent specification stated that “client applications may be service or goods providers whose business is geographically oriented,” such as a “hotel, restaurant, and/or store.”  The patent specification further stated that these businesses may wish to know that a wireless device and its user are nearby so that “relevant advertising may be transmitted to the wireless communications device.”  The PTAB then reasoned that the challenged claims were “incidental or complementary to” potential sales results from advertising.  On this basis, the PTAB found that the challenged patent was a “covered business method patent” and instituted the CBM review.

The Federal Circuit noted that this “incidental” or “complementary” language does not appear in the statutory or regulatory definition of “covered business method patent.”  Instead, that language originated from a statement Senator Schumer made, which the PTO quoted in its response to public comments concerning its consideration of proposed interpretations of the statutory definition for a CBM patent.  The Federal Circuit noted that general policy statements are not legally binding, and, without adopting a policy as a rule through rulemaking – which the PTO did not do here – an “agency cannot apply or rely upon a general statement of policy as law.”

The Federal Circuit went on to acknowledge that the “incidental” or “complementary” to financial activity test is overbroad in any event, explaining that, for example, a patent for a novel lightbulb that is found to work particularly well in bank vaults does not become a CBM patent because of its incidental or complementary use in banks.  “It is not enough that a sale has occurred or may occur, or even that the specification speculates such a potential sale might occur” to be considered a CBM patent.

As evident by the facts of this case, the PTAB has, until now, applied the CBM standard very liberally.  That trend is now likely to take a turn, at least somewhat.

Supreme Court to Review Two Key IPR Issues

8345487_sThe Supreme Court granted certiorari today on Cuozzo Speed Technology’s petition to review In re Cuozzo Speed Tech., 793 F.3d 1268 (Fed. Cir. 2015). Cuozzo presented two questions, and the Court has accepted both of them:

(1)   Whether the court of appeals erred in holding that, in IPR proceedings, the board may construe claims in an issued patent according to their broadest reasonable interpretation rather than their plain and ordinary meaning.

(2)   Whether the court of appeals erred in holding that, even if the board exceeds its statutory authority in instituting an IPR proceeding, the board’s decision whether to institute an IPR proceeding is judicially unreviewable.

If the Supreme Court reverses the Federal Circuit’s decision on either of those two grounds, the impacts on future IPR proceedings could be huge. Although there are certainly patent claims that are invalid regardless of whether the “broadest reasonable interpretation” (“BRI”) or the plain and ordinary meaning (the so-called “Philips” construction) is used, there are also claims where the choice of standard is itself outcome determinative. There are, therefore, numerous patentees who should prefer Philips, and potential challengers who should prefer BRI.

Perhaps even more intriguing, however, is the possibility of a reversal on the second question presented: whether the decision to institute is so completely unreviewable as the Federal Circuit has held in (e.g.)Cuozzo or more recently Achates Pub’g. v. Apple Inc., 803 F.3d 652 (Fed. Cir. 2015). Although the AIA lists a variety of situations in which IPR, PGR, and CBM are not available (35 U.S.C. §§ 315 and 325), the Federal Circuit has effectively insulated the PTAB’s decision to institute a trial from review. As such, even if the PTAB explicitly violates these statutory prohibitions, there is no mechanism by which the procedural defect can be remedied. A decision by the Supreme Court that 35 U.S.C. § 314(d) does not shield IPR institution decisions from review would dramatically shift the relative power balance between challengers and patentees in these AIA trial procedures. This blog will continue to follow this story as it develops.

Federal Circuit Addresses Substantial Evidence as Standard of Review in IPR

cafc1In June, 2014, the PTAB declared all challenged claims in two IPR trials brought by Gnosis S.p.A. to be unpatentable based on obviousness grounds. Gnosis S.p.A. v. S. Ala. Medical Science Found., IPR2013-00116 and Gnosis S.p.A. v. Merck & Cie, IPR2013-00117. In forty pages of opinion-and-dissent between the two cases, a divided panel of the Federal Circuit today affirmed these decisions as supported by substantial evidence. Merck & Cie v. Gnosis S.p.A., (Gnosis I) and S. Ala. Medical Science Found. v. Gnosis S.p.A. (Gnosis II). Of particular note is a thorough dissent filed by Judge Newman wherein she argues, unsuccessfully, that the substantial evidence standard should not apply to IPR proceedings to assure that the legislative purposes of IPR are met.

Substantively, the patents-at-issue are directed to homocysteine, a metabolic byproduct that forms in the course of mammalian biosynthesis of certain amino acids and nucleotides. Over-accumulation of homocysteine causes cardiac, skeletal, and nervous disorders. The technology in question here relates to treating this over-accumulation (hyperhomocysteinemia) by administering a particular isomer of a particular folate metabolite (L-5-MTHF). At the time of invention, folic acid was used to treat hyperhomocysteinemia, and L-5-MTHF was known as a biologically occurring metabolite of folic acid that was involved in various metabolic pathways for clearing homocysteine . Gnosis therefore argued—and the PTAB agreed—that it would have been obvious at the time of invention to cut out the middle man, so to speak, and administer L-5-MTHF directly instead of supplementing with folic acid so that the body could, after a lengthy series of enzymatic conversions, turn the folic acid into L-5-MTHF.

Of course, biological and chemical realities were not quite so simple as Gnosis’ argument for obviousness would imply. South Alabama Medical Science Foundation (SAMSF), the patentee, and their licensee, Merck, countered that at the time of invention L-5-MTHF had many known disadvantages that would discourage this strategy. For one thing, there was evidence that L-5-MTHF is not retained well in cells, such that large doses would be required to get a useful amount into the patient’s cells. This large dose problem is made doubly tricky by the fact that L-5-MTHF is not as stable as folic acid. The propensity of L-5-MTHF to degrade would mean that the dose that the manufacturer supplies would have to be correspondingly larger to account for degradation. Finally, there was some evidence that patient homocysteine levels could increase following L-5-MTHF administration, which would exacerbate rather than alleviate hyperhomocysteinemia.

Gnosis had a variety of published reports countering all of these points, and Merck had other reports countering Gnosis’ reports, and so on and so forth. The end result, as far as the PTAB was concerned, was that when all the evidence was weighed up together, the preponderance of the evidence supported a conclusion of obviousness.

Although Judge Hughes’ majority opinion does not touch on this point, the “preponderance of the evidence” standard of §316(e) is probably outcome determinative here. If this evidence had been considered under the “clear and convincing” standard for §282(a), the fact-finder would presumably have to say “Gnosis has a bunch of evidence and Merck has a bunch of counter evidence; I suspect that Gnosis’ evidence is more credible, but it is not ‘clearly and convincingly’ more credible, so the patentee gets the benefit of the doubt.” Because the challenger only had to prove unpatentability by a preponderance of the evidence, however, the PTAB as fact-finder was free to decide that Gnosis’ evidence was more credible on balance.

Judge Newman’s dissent touches upon this point, stating that, “[o]n questions that are close, as here illustrated, the standard of review can affect the result.” Gnosis I (dissent) at 13. Thus, she argues, it is incorrect for the Federal Circuit to review PTAB decisions under the highly deferential “substantial evidence” standard. Gnosis I (dissent) at 4. Specifically, Judge Newman remarks that “[t]he substantial evidence standard determines whether the decision could reasonably have been made, not whether it was correctly made.” Id. It is the Federal Circuit’s job, per Judge Newman, to assure that the PTAB’s factual findings are actually supported by the preponderance of the evidence.