B/E Aerospace, Inc. v. C & D Zodiac, Inc. , 709 F. App'x 687 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
B/E AEROSPACE, INC.,
Appellant
v.
C&D ZODIAC, INC.,
Cross-Appellant
______________________
2016-1496, 2016-1497
______________________
Appeals from the United States Patent and Trade-
mark Office, Patent Trial and Appeal Board in No.
IPR2014-00727.
______________________
Decided: October 3, 2017
______________________
ANDREI IANCU, Irell & Manella LLP, Los Angeles, CA,
argued for appellant. Also represented by MORGAN CHU,
MICHAEL RICHARD FLEMING, BENJAMIN HABER, ELLISEN
SHELTON TURNER.
JOHN C. ALEMANNI, Kilpatrick Townsend & Stockton
LLP, Raleigh, NC, argued for cross-appellant. Also repre-
sented by DAVID A. REED, DEAN W. RUSSELL, Atlanta, GA;
STEVEN MOORE, San Francisco, CA.
______________________
2 B/E AEROSPACE, INC. v. C&D ZODIAC, INC.
Before WALLACH, CHEN, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
The present appeal and cross-appeal stem from the
Patent Trial and Appeal Board’s invalidation of some, but
not all, of the challenged claims of B/E Aerospace, Inc.’s
U.S. Patent No. 8,590,838 as obvious in an inter partes
review proceeding filed by C&D Zodiac, Inc. On appeal,
B/E challenges the Board’s conclusion that claims 1, 3–7,
9, 10, 12–14, 16–19, 21, 22, 24–29, 31, and 33–37 would
have been obvious, and Zodiac cross-appeals the Board’s
determination that claims 8, 20, 30, and 38 were patenta-
ble. We affirm the Board’s Final Written Decision in its
entirety.
BACKGROUND
The ’838 patent relates to a space-saving design for
aircraft enclosures—including lavatories, closets, and
galleys—that increases the value of an aircraft by “al-
low[ing] the installation of an increased number of pas-
senger seats.” ’838 patent col. 2 ll. 6–7, 13–22. In the
prior art, an aircraft enclosure’s forward wall was typical-
ly flat. This configuration is shown in Figure 1, with the
lavatory’s flat forward wall touching the back of the
passenger seat:
B/E AEROSPACE, INC. v. C&D ZODIAC, INC. 3
The back of the passenger seat abutting the flat forward
wall, however, was often not flat, which created a “signifi-
cant volume[]” of unusable space on the aircraft between
the wall and the seat. Id. at col. 1 ll. 22–28.
The ’838 patent sought to reduce the unusable space
by altering the shape of the enclosure’s forward wall
without meaningfully shrinking the size of the enclosure.
This new design is depicted below in Figure 2:
As can be seen from Figure 2, “[t]he forward wall portion
[of enclosure 10] has a shape that is substantially not flat
in the vertical plane, and preferably is shaped to include a
recess 34 such that the forward wall portion substantially
conforms to the shape of the exterior aft surface of the
aircraft cabin structure [passenger seat 16].” Id. at col. 4
ll. 25–29. The back of the passenger seat can nestle into
the recess created by the non-flat wall, thereby permitting
4 B/E AEROSPACE, INC. v. C&D ZODIAC, INC.
the seat to be moved backwards. Airlines can then use
the space created by shifting the seat to provide more
spacious seating or to increase the number of seats on the
plane. J.A. 3630–31 ¶¶ 77–78.
Independent claim 1 and dependent claim 8 recite
these improvements:
1. A lavatory for a cabin of an aircraft, the
cabin including a passenger seat having an aft
portion that is substantially not flat in a vertical
plane, the lavatory comprising:
a lavatory stall unit having at least
one wall having a forward wall portion,
said at least one wall defining an interior
lavatory space, and said forward wall por-
tion being configured to be disposed im-
mediately aft of and adjacent to an
aircraft cabin passenger seat having an aft
portion with an exterior aft surface having
a shape that is substantially not flat in a
vertical plane; and
wherein said forward wall portion is
shaped to substantially conform to the
shape of the exterior aft surface of the aft
portion of the aircraft cabin passenger
seat, and said forward wall portion in-
cludes an aft-extending recess in said for-
ward wall portion configured to receive
the aft portion of the aircraft cabin pas-
senger seat therein.
....
8. The lavatory of claim 1, wherein said lava-
tory stall unit has a top, a bottom, a height there-
between, and a middle therebetween, said
lavatory stall unit has varying lengths along the
height of the lavatory stall unit, and said lavatory
B/E AEROSPACE, INC. v. C&D ZODIAC, INC. 5
stall unit is longer at the top of the lavatory stall
unit than at the bottom of the lavatory stall unit.
Id. at col. 4 l. 54 – col. 5 l. 3, col. 5 ll. 31–36.
Zodiac petitioned for IPR of claims 1, 3–10, 12–14, 16–
22, 24–31, and 33–38. The Board instituted review for all
challenged claims but divided them into two groups:
1) obviousness of claims 1, 3–7, 9, 10, 12–14, 16–19, 21,
22, 24–29, 31, and 33–37 in view of U.S. Patent
No. 3,738,497 (“Betts”); and 2) obviousness of claims 8, 20,
30, and 38 in view of Betts and the McDonnell Douglas
DC-10 Customer Configuration Summary (“Orange
Book”). See C & D Zodiac, Inc. v. B/E Aerospace, Inc.,
IPR2014-727, 2015 WL 6470951, at *1 (PTAB Oct. 26,
2015) (“Board Decision”). Claim 1 is representative of the
first group of claims, and claim 8 is representative of the
second group. In its Final Written Decision, the Board
determined that B/E’s evidence of secondary considera-
tions was insufficient to overcome Zodiac’s prima facie
case of obviousness in view of Betts and that the first
group of claims would have been obvious in view of Betts.
The Board concluded that the second group of claims was
not unpatentable in view of Betts and the Orange Book
because Zodiac failed to establish that the Orange Book
was a printed publication.
B/E appeals from the Board’s Final Written Decision
invalidating the claims in the first group as obvious.
Zodiac cross-appeals from the Board’s conclusion that the
Orange Book did not qualify as a printed publication. We
have jurisdiction pursuant to 35 U.S.C. § 141(c) and
28 U.S.C. § 1295(a)(4)(A).
DISCUSSION
On appeal, the parties present four main arguments
for our review. B/E’s appeal alleges three errors by the
Board in its decision invalidating claims 1, 3–7, 9, 10, 12–
14, 16–19, 21, 22, 24–29, 31, and 33–37 in view of Betts.
6 B/E AEROSPACE, INC. v. C&D ZODIAC, INC.
Zodiac’s cross-appeal argues that the Board erred in
concluding that the Orange Book was not a printed publi-
cation. We address each argument in turn.
I.
B/E first alleges that the Board erred in its construc-
tions of “substantially not flat in a vertical plane,” “enclo-
sure unit,” and “lavatory stall unit.” Second, B/E
contends that the Board was incorrect in finding claims 1,
3–7, 9, 10, 12–14, 16–19, 21, 22, 24–29, 31, and 33–37
obvious over Betts. Third, B/E claims that the Board
failed to appropriately consider its evidence of secondary
considerations.
A.
When construing claims, the Board must apply the
broadest reasonable construction in light of the patent’s
specification. Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct.
2131, 2142 (2016). “We review intrinsic evidence and the
ultimate construction of the claim de novo.” SightSound
Techs., LLC v. Apple Inc., 809 F.3d 1307, 1316 (Fed. Cir.
2015).
Zodiac’s petition did not provide constructions for
“substantially not flat in a vertical plane,” “enclosure
unit,” or “lavatory stall unit.” Nonetheless, the Board
rejected B/E’s proposed constructions for these three
terms in its Final Written Decision, which B/E challenges
on appeal.
The Board concluded that the broadest reasonable
construction of “a passenger seat having an aft portion
that is substantially not flat in a vertical plane” included
an aft portion of a passenger seat “that has a flat shape
but which is not within a vertical plane.” Board Decision,
2015 WL 6470951, at *3–4. B/E contends instead that the
term should be construed to mean “a back side shape with
a back exterior surface that is contoured or substantially
non planar in an upright position.” Appellant Br. 19.
B/E AEROSPACE, INC. v. C&D ZODIAC, INC. 7
According to B/E, the Board disregarded the term’s re-
quirement that the shape is “not flat” and only applied
the descriptor “not” to the phrase “in a vertical plane.”
We disagree. Under the broadest reasonable construc-
tion, “not” modifies the entire phrase “flat in a vertical
plane.” Thus, the seat’s aft portion must be substantially
not flat in a vertical plane, as the rest of the claim term
instructs. See, e.g., ’838 patent col. 4 ll. 54–56. According-
ly, the Board correctly concluded that the aft portion of
the seat can have a flat shape so long as it is substantially
not flat in a vertical plane. We see no error in the Board’s
construction.
Next, the Board determined that the terms “enclosure
unit” and “enclosure” encompass “lavatories, aircraft
closets, and aircraft galleys” and declined to construe
“enclosure unit” further. Board Decision, 2015 WL
6470951, at *3. According to B/E, attributing the same
meaning to both “enclosure” and “enclosure unit” renders
the word “unit” superfluous. To give meaning to the word
“unit,” B/E urges us to construe “enclosure unit” as a
“single functional space, enclosed on all sides.” Appellant
Br. 24.
We decline B/E’s invitation. The Summary of the In-
vention section explains that the “enclosure unit” can be
“a lavatory, an aircraft closet, or an aircraft galley.” ’838
patent col. 2 ll. 27–28. As the Board noted, aircraft gal-
leys can serve multiple functions and are not necessarily
enclosed on all sides. Board Decision, 2015 WL 6470951,
at *3 (citing U.S. Patent Application Publication
No. 2007/0228216). Nothing else in the claims or the
specification supports limiting the “enclosure unit” to a
single function or requiring that it be enclosed on all
sides. The Board did not err in its construction.
Finally, the Board rejected B/E’s claim construction
arguments for “lavatory stall unit,” but declined to pro-
vide an express construction in light of the invalidity
8 B/E AEROSPACE, INC. v. C&D ZODIAC, INC.
grounds Zodiac raised in its IPR petition. For reasons
similar to those discussed for the “enclosure unit” term,
B/E argues that “lavatory stall unit” should be construed
as “a single room, enclosed on all sides, having a toilet
and washbasin and large enough to fit a person inside.”
Appellant Br. 30. Moreover, B/E claims there is a funda-
mental dispute between the parties regarding the scope of
the term and argues that it was error for the Board not to
provide an express construction.
We agree with the Board that the plain and ordinary
meaning is sufficient here. The ’838 patent does not
ascribe a special definition to a “lavatory stall unit” other
than the plain and ordinary meaning. And, although the
parties certainly dispute the scope of the claims, Zodiac
does not rely on any lavatory prior art. Instead, its obvi-
ousness position is based on applying the concepts taught
by Betts to a lavatory stall unit, not modifying the lavato-
ry stall unit in a certain way. Therefore, the Board did
not err in ascribing the plain and ordinary meaning to
“lavatory stall unit.”
B.
A claim is unpatentable as obvious “if the differences
between the subject matter sought to be patented and the
prior art are such that the subject matter as a whole
would have been obvious at the time the invention was
made to a person having ordinary skill in the art.”
35 U.S.C. § 103. 1 We review the Board’s ultimate obvi-
ousness determination de novo and underlying factual
findings for substantial evidence. Harmonic Inc. v. Avid
1 Given the effective filing date of the claims of the
’838 patent, the version of 35 U.S.C. § 103 that applies
here is that in force preceding the changes made by the
America Invents Act. See Leahy–Smith America Invents
Act, Pub. L. No. 112-29, § 3(n), 125 Stat. 284, 293 (2011).
B/E AEROSPACE, INC. v. C&D ZODIAC, INC. 9
Tech., Inc., 815 F.3d 1356, 1363 (Fed. Cir. 2016). Sub-
stantial evidence “means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938). Factual findings underlying the obviousness
inquiry include the scope and content of the prior art, the
differences between the prior art and the claimed inven-
tion, whether there is a motivation to combine prior art
references, the level of ordinary skill in the art, and
relevant secondary considerations. Merck & Cie v. Gnosis
S.P.A., 808 F.3d 829, 833 (Fed. Cir. 2015), cert. denied,
137 S. Ct. 297 (2016).
The Board held each of claims 1, 3–7, 9, 10, 12–14,
16–19, 21, 22, 24–29, 31, and 33–37 unpatentable in light
of Betts, which discloses an elevated coat closet having a
recessed forward wall that does not interfere with the
tiltable passenger seat positioned in front of it. Figure 1
of Betts is shown below:
10 B/E AEROSPACE, INC. v. C&D ZODIAC, INC.
Betts’s coat closet purports to use space in the aircraft
more efficiently by elevating the garments 28 for storage
after they have been hung on coat rack 24. Betts col. 1
ll. 5–7, col. 2 ll. 7–32. The coat closet 14 contains a lug-
gage storage space 16 and an overhead coat compartment
18. Id. at col. 2 ll. 11–14. Walls 30 and 32 slant rear-
wardly to allow the occupant to recline seatback 12 of
passenger seat 10. Id. at col. 2 ll. 7–24.
The Board found that Betts taught every feature of
claim 1 except the “lavatory-specific limitations.” Board
Decision, 2015 WL 6470951, at *6. To fill this gap, the
Board relied on the testimony of Zodiac’s expert, Alan
Anderson, to establish that a person of ordinary skill at
the time of the invention would have considered it obvious
“to apply the recessed design of the forward wall of Betts
to other aircraft enclosures, including lavatories.” Id.(citing J.A. 1500–01 ¶¶ 65–68). The Board credited
Mr. Anderson’s testimony that Betts would have motivat-
ed an ordinarily skilled artisan to use space on an aircraft
efficiently and that Betts teaches the space efficiency that
can be gained by using a recessed forward wall configura-
tion instead of a flat forward wall configuration. Id. For
support, Mr. Anderson cited the Betts patent, which
states that it elevated the coat rack “so that it will be out
of the way and provide more room for passengers in an
aircraft.” J.A. 1500 ¶ 65 (citing Betts col. 1 ll. 6–7).
Based on this understanding, the Board agreed with
Mr. Anderson that a person of ordinary skill would have
been motivated to apply the recessed forward wall config-
uration of Betts to lavatories and other aircraft enclo-
sures.
B/E raises two main arguments on appeal. First, B/E
argues that Betts teaches only a flat, tiltable seatback
and not a contoured forward wall that is shaped to receive
a contoured seatback. As explained above, although
Betts’s seatback is flat, it is not flat in a vertical plane.
Therefore, it falls within the broadest reasonable con-
B/E AEROSPACE, INC. v. C&D ZODIAC, INC. 11
struction of “substantially not flat in a vertical plane.”
And B/E’s argument that the ’838 patent requires a
contoured forward wall and seatback finds no support in
the claims. Claim 1, for example, requires a seatback
“having a shape that is substantially not flat in a vertical
plane” and a forward wall that is “shaped to substantially
conform to the shape of the exterior aft surface of the aft
portion of the aircraft cabin passenger seat.” ’838 patent
col. 4 ll. 62–66. The word “contoured” is not mentioned in
the claims. In fact, it only appears in the Background of
the Invention section of the ’838 patent. See id. at col. 1
ll. 24–35.
Second, B/E argues that Betts discloses neither an
enclosure unit nor a lavatory stall unit because it contains
two separate storage compartments—luggage storage
space 16 and overhead coat compartment 18—divided by
the tilting seatback 12. B/E claims that an enclosure unit
cannot be subdivided, and a lavatory stall unit must
contain all of the numerous complex systems required for
a functioning lavatory, i.e., plumbing, faucets, electricity,
etc.
The Board previously rejected these arguments, and
its conclusion is supported by substantial evidence. As
the Board explained, B/E’s arguments miss the thrust of
Zodiac’s obviousness position. Zodiac contends that
applying the recessed forward wall of Betts to lavatories
and other aircraft enclosures would have been obvious
based on Betts’s teachings and the knowledge of an ordi-
narily skilled artisan. Zodiac never asserted that Betts’s
coat closet could be modified to obtain a functioning
lavatory, so the fact that Betts has divided compartments
and lacks the complex lavatory systems is irrelevant.
Board Decision, 2015 WL 6470951, at *7. Instead, Zodiac
relies on Betts’s recessed forward wall and desire for
increased efficiency in the use of space on an aircraft to
motivate one of ordinary skill in the art to modify an
existing lavatory (or other enclosure) by applying Betts’s
12 B/E AEROSPACE, INC. v. C&D ZODIAC, INC.
recessed forward wall to that conventional lavatory. 2
This obviousness argument is independent of whether the
Betts closet contains one or two storage compartments,
and B/E’s contrary contentions do not undermine the
substantial evidence on which the Board’s conclusion
rests.
C.
B/E also insists that the Board erred in finding its ev-
idence of secondary considerations insufficient to over-
come Zodiac’s prima facie case of obviousness. Secondary
considerations are an important part of the obviousness
analysis and must, when present, be considered. See
Transocean Offshore Deepwater Drilling, Inc. v. Maersk
Drilling USA, Inc., 699 F.3d 1340, 1349 (Fed. Cir. 2012).
The Board considered and weighed B/E’s evidence of
industry praise, commercial success, and copying. Sub-
stantial evidence supports the Board’s conclusions on each
of these secondary considerations.
At the outset, we note that the Board did not address
the nexus between B/E’s secondary considerations evi-
dence and the claimed features of the ’838 patent. “For
objective [evidence of secondary considerations] to be
accorded substantial weight, its proponent must establish
a nexus between the evidence and the merits of the
claimed invention.” Wyers v. Master Lock Co., 616 F.3d
1231, 1246 (Fed. Cir. 2010) (alteration and emphasis in
2 Although it was not relied on by the Board, Betts
defines its coat closet 14 to include both the storage space
16 and the coat compartment 18. See Betts col. 2 ll. 11–
14; see also J.A. 3373–74 (explaining that, according to
Zodiac’s expert, Mr. Anderson, “the enclosure [in Betts] is
the sum of the pieces located behind the seat,” and that
Betts’s upper enclosure and lower enclosure, taken to-
gether, “form an enclosure unit”).
B/E AEROSPACE, INC. v. C&D ZODIAC, INC. 13
original) (quoting In re GPAC Inc., 57 F.3d 1573, 1580
(Fed. Cir. 1995)). For purposes of our analysis on appeal,
we assume that a nexus exists, although it is not without
some reservation. For example, one of the articles prof-
fered by B/E to demonstrate industry praise highlights
the “[a]ntimicrobial coatings on the interior surfaces” of
B/E’s new lavatory, which provides a cleaner, more hy-
gienic lavatory, as well the fact that the “toilet even uses
less water when flushing.” J.A. 3195; see also J.A. 3183
(noting that B/E’s lavatory will “integrate B/E’s ‘Aircraft
Ecosystems’ vacuum toilet, LED lighting and B/E Aero-
space tamper proof, lavatory oxygen system”). The clean-
er surfaces, new lighting, and improved toilet could have
played some role in the commercial success of, and indus-
try praise for, B/E’s new lavatory. This, however, is not
for us to decide on appeal.
With respect to commercial success, the Board viewed
B/E’s contract to be the exclusive manufacturer of modu-
lar lavatory systems for the next generation of Boeing’s
737 airplanes—valued at approximately $800 million—as
weak evidence. Although the contract’s estimated value is
large, the Board found it lacked the requisite context to
evaluate this evidence. The Board wanted to know, for
example, the number of years over which the contract is
spread; the amount that other competitors in the same
market will make over this period; the global market
sales revenue for aircraft lavatories; and the percentage of
that market belonging to B/E. Board Decision, 2015 WL
6470951, at *10. B/E is correct that our precedent does
not require answers to each of these questions in every
case. But we cannot say that the Board’s assessment of
B/E’s evidence was legally erroneous or unsupported by
substantial evidence. The Board did not wholly disregard
the evidence of commercial success due to the lack of
context. Instead, the Board found that B/E’s contract
with Boeing should be afforded minimal weight because
the bare dollar value did “not provide a frame of reference
14 B/E AEROSPACE, INC. v. C&D ZODIAC, INC.
against which [the Board could] make an informed judg-
ment of the evidentiary value of the $800 million figure”
and left the Board with “many unanswered questions
with respect to the dollar figure provided by [the] Patent
Owner.” Id. Without the introduction of contextual
evidence, substantial evidence supports the Board’s
conclusion that the estimated value of the contract, in a
vacuum, was weak evidence of commercial success.
The Board also found B/E’s evidence of copying to be
weak because it was limited to mere allegations of copying
by Zodiac without supporting evidence other than allega-
tions of infringement. Because B/E had not proven that
any Zodiac product infringes the ’838 patent, and because
infringement alone cannot establish copying, the Board
allocated little weight to this evidence. Id. at *11; Iron
Grip Barbell Co. v. USA Sports, Inc., 392 F.3d 1317, 1325
(Fed. Cir. 2004) (“Not every competing product that
arguably falls within the scope of a patent is evidence of
copying. . . . Rather, copying requires the replication of a
specific product.”). B/E argues on appeal that Zodiac
produced only flat-walled lavatories until Boeing awarded
a contract to B/E for its Spacewall product and that
Zodiac’s expert, Mr. Anderson, admitted to being familiar
with the Spacewall. Although Mr. Anderson said he was
familiar with B/E’s Spacewall, he also explained that he
had not worked on any lavatories for Zodiac. This falls
short of the type of copying evidence we have found suffi-
cient in the past: internal documents that indicate copy-
ing, “direct evidence such as disassembling a patented
prototype, photographing its features, and using the
photograph as a blueprint to build a virtually identical
replica,” or “access to, and substantial similarity to, the
patented product.” Iron Grip, 392 F.3d at 1325. The
Board found that B/E had not offered any evidence of this
sort here. Board Decision, 2015 WL 6470951, at *11.
Substantial evidence thus supports the Board’s decision to
give this evidence minimal weight.
B/E AEROSPACE, INC. v. C&D ZODIAC, INC. 15
The Board also considered B/E’s evidence of industry
praise, including that B/E’s Spacewall lavatory product
won the Crystal Cabin Award. B/E claims its Spacewall
product is a commercial embodiment of the ’838 patent,
and the Crystal Cabin Award is viewed in the industry as
“a seal of quality, known and coveted around the world.”
J.A. 3201. B/E also provided several newspaper articles
containing complimentary reviews of B/E’s Spacewall.
See, e.g., J.A. 3192–97. The Board acknowledged B/E’s
evidence of industry praise and characterized it as “mod-
erate.” Board Decision, 2015 WL 6470951, at *11. While
a fact finder could have reasonably found receipt of the
prestigious Crystal Cabin Award and the favorable media
reviews more probative of nonobviousness than “moder-
ate[ly]” probative, we cannot say that the Board’s fact
finding was unsupported by substantial evidence. The
substantial evidence standard is a deferential one, requir-
ing only “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Con-
sol. Edison Co., 305 U.S. at 229. We have explained that
it “is something less than the weight of the evidence but
more than a mere scintilla of evidence.” In re Kahn,
441 F.3d 977, 985 (Fed. Cir. 2006).
Finally, we see no error in the Board’s ultimate de-
termination of obviousness. The Board weighed the
“strong evidence of obviousness” in view of Betts against
the “moderate” evidence of industry praise and the “weak”
evidence of copying and commercial success before con-
cluding that the claims would have been obvious over
Betts when combined with the knowledge of an ordinarily
skilled artisan. Board Decision, 2015 WL 6470951, at
*11. We agree.
II.
In its cross-appeal, Zodiac argues that the Board
erred in concluding that the Orange Book was not a
printed publication and therefore did not qualify as a
16 B/E AEROSPACE, INC. v. C&D ZODIAC, INC.
prior art reference for purposes of the IPR proceeding.
According to Zodiac, the Orange Book discloses an elevat-
ed coatrack that is longer at the top of the unit than at
the bottom, as required by dependent claims 8, 20, 30,
and 38.
Section 311(b) of the Patent Act confines the universe
of prior art available for use in IPR proceedings to “pa-
tents or printed publications.” 35 U.S.C. § 311(b). De-
termining whether a reference constitutes a printed
publication is a legal conclusion based on underlying
factual determinations. Cf. Cooper Cameron Corp. v.
Kvaerner Oilfield Prods., Inc., 291 F.3d 1317, 1321 (Fed.
Cir. 2002). We review the Board’s legal conclusions de
novo and its factual determinations for substantial evi-
dence. In re Lister, 583 F.3d 1307, 1311 (Fed. Cir. 2009).
Public accessibility is the “touchstone in determining
whether a reference constitutes a ‘printed publication.’”
In re Hall, 781 F.2d 897, 899 (Fed. Cir. 1986). “A refer-
ence is considered publicly accessible if it was ‘dissemi-
nated or otherwise made available to the extent that
persons interested and ordinarily skilled in the subject
matter or art exercising reasonable diligence, can locate
it.’” In re Lister, 583 F.3d at 1311 (quoting Kyocera Wire-
less Corp. v. Int’l Trade Comm’n, 545 F.3d 1340, 1350
(Fed. Cir. 2008)); Constant v. Advanced Micro-Devices,
Inc., 848 F.2d 1560, 1569 (Fed. Cir. 1988) (“Accessibility
goes to the issue of whether interested members of the
relevant public could obtain the information if they want-
ed to.”). Public accessibility presents a case-by-case
inquiry based on the “facts and circumstances surround-
ing the reference’s disclosure to members of the public.”
In re Lister, 583 F.3d at 1311 (quoting In re Klopfenstein,
380 F.3d 1345, 1350 (Fed. Cir. 2004)).
McDonnell Douglas Corporation is a predecessor to
Boeing, and it manufactured a passenger airplane called
the DC-10. In connection with the DC-10, McDonnell
B/E AEROSPACE, INC. v. C&D ZODIAC, INC. 17
Douglas created a customer configuration summary called
the Orange Book. The Orange Book contains floor plans
and drawings of cabin interiors for the DC-10. McDonnell
Douglas allegedly distributed the Orange Book to poten-
tial airline customers to provide them with customization
options for the cabin interior.
The Orange Book is a three-ring binder of loose-leaf
paper. Pages can be added or removed as updates or
revisions are made to the Orange Book. The version in
the record has pages indicating revision and issue dates
ranging from 1975 to 1978. J.A. 1066, 1070, 1072, 1078,
1111. Of particular importance is page 5.3 of the version
of the Orange Book in the record, dated October 1978,
which shows an elevated coatrack purporting to meet the
limitations of dependent claims 8, 20, 30, and 38. See
J.A. 1191. The Orange Book’s format highlights the
crucial question: whether the version of the Orange Book
with the specific schematic on which Zodiac relies was
publically accessible before the critical date of the ’838
patent—April 20, 2009—such that the Orange Book in the
record constitutes a prior art printed publication.
To establish public accessibility, Zodiac offered decla-
rations from Jarold Newkirk and John Schoenberg. In his
declaration, Mr. Newkirk stated that he was a former
McDonnell Douglas employee and had personal
knowledge of McDonnell Douglas’s publication and distri-
bution of the Orange Book to its airline customers in
1978. But, as the Board recognized, Mr. Newkirk conced-
ed during his deposition that he lacked personal
knowledge regarding whether the version of the Orange
Book in the record was identical to the version that was
allegedly published and distributed in 1978. See Board
Decision, 2015 WL 6470951, at *12–13; J.A. 3479–80.
Moreover, Mr. Newkirk’s statement that the copy of the
Orange Book he reviewed was identical to the versions
allegedly published and distributed in 1978 was based on
his belief that the copy he reviewed came from
18 B/E AEROSPACE, INC. v. C&D ZODIAC, INC.
Mr. Schoenberg, and Mr. Schoenberg said he was given
that copy of the Orange Book by McDonnell Douglas.
Board Decision, 2015 WL 6470951, at *12–13 (citing
J.A. 3479–80) (“[W]hether or not it was exactly that, I
have no knowledge.” (emphasis omitted)). Mr. Newkirk
also could not “unequivocally say” that he distributed the
specific version of the Orange Book in evidence to custom-
ers in 1978. See J.A. 3478–79.
Mr. Schoenberg’s testimony was similarly vague. He
explained in his declaration that he obtained the Orange
Book “possibly from [his employer’s] marketing depart-
ment in 1981 or perhaps later” when he was in charge of
Zodiac’s efforts to develop ceiling panels for the DC-10
aircraft. J.A. 2138–39 ¶ 5 (emphasis added). As the
Board pointed out, this testimony was “not definitive of
what was published and by when.” Board Decision, 2015
WL 6470951, at *13. Moreover, the Board was not con-
vinced that Mr. Schoenberg’s testimony “relate[d] specifi-
cally to the version of the Orange Book on which [Zodiac]
relies” because he was unable to confirm that the copy
provided to him during his deposition was the same as the
copy previously in his possession. Id. (citing J.A. 3542).
And when asked by the Board how it could be sure “that
the specific page that [Zodiac is] relying on was part of the
Orange Book back in that relevant time frame,” Zodiac’s
counsel admitted that Zodiac did not “have testimony that
that specific page was in that specific Orange Book.” Id.(citing J.A. 700).
Based on this record, we conclude that substantial ev-
idence supports the Board’s determination that Zodiac did
not satisfy its burden of establishing that the version of
the Orange Book in the record was publically accessible.
The nature of the Orange Book focuses our inquiry on
whether the version of the Orange Book containing the
relevant schematic was publically accessible. The Board
found the testimony of Messrs. Newkirk and Schoenberg
deficient in this regard. Specifically, the Board discount-
B/E AEROSPACE, INC. v. C&D ZODIAC, INC. 19
ed the testimony of Mr. Newkirk because he demonstrat-
ed a lack of personal knowledge regarding whether the
Orange Book version in evidence was published and
distributed during the relevant time period.
Mr. Schoenberg’s deposition exposed similar inadequa-
cies; the Board found his testimony about the Orange
Book might not even relate to the version in evidence.
This is substantial evidence to support the Board’s con-
clusion that Zodiac did not establish public accessibility of
the Orange Book containing the pertinent schematic. In
short, nothing in the record demonstrates that “persons
interested and ordinarily skilled in the subject matter or
art exercising reasonable diligence” could have located the
relevant version of the Orange Book before the priority
date. See In re Lister, 583 F.3d at 1311.
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. For the reasons stated
above, neither the Board’s claim constructions nor its
obviousness determination was erroneous. We also detect
no error in the Board’s fact findings and legal conclusions
regarding public accessibility of the Orange Book. Accord-
ingly, we affirm.
AFFIRMED
COSTS
No costs.