Case: 20-1424 Document: 72 Page: 1 Filed: 10/25/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
COREPHOTONICS, LTD.,
Appellant
v.
APPLE INC.,
Appellee
ANDREW HIRSHFELD, PERFORMING THE
FUNCTIONS AND DUTIES OF THE UNDER
SECRETARY OF COMMERCE FOR
INTELLECTUAL PROPERTY AND DIRECTOR OF
THE UNITED STATES PATENT AND TRADEMARK
OFFICE,
Intervenor
______________________
2020-1424
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2018-
01140.
______________________
Decided: October 25, 2021
______________________
MARC AARON FENSTER, Russ August & Kabat, Los An-
geles, CA, argued for appellant. Also represented by NEIL
Case: 20-1424 Document: 72 Page: 2 Filed: 10/25/2021
2 COREPHOTONICS, LTD. v. APPLE INC.
RUBIN.
ANGELA OLIVER, Haynes & Boone, LLP, Washington,
DC, argued for appellee. Also represented by ANDREW S.
EHMKE, DEBRA JANECE MCCOMAS, Dallas, TX; MICHAEL
SCOTT PARSONS, Plano, TX.
FARHEENA YASMEEN RASHEED, Office of the Solicitor,
United States Patent and Trademark Office, Alexandria,
VA, argued for intervenor. Also represented by MICHAEL
S. FORMAN, THOMAS W. KRAUSE, MAUREEN DONOVAN
QUELER.
______________________
Before TARANTO, HUGHES, and STOLL, Circuit Judges.
TARANTO, Circuit Judge.
Corephotonics, Ltd. owns
U.S. Patent No. 9,402,032,
which describes and claims optical lens assemblies. In May
2018, Apple Inc. successfully petitioned the Patent and
Trademark Office (PTO) for an inter partes review of four
claims of the ’032 patent under
35 U.S.C. §§ 311–319. Ap-
ple argued (1) that
U.S. Patent No. 9,128,267 (Ogino) an-
ticipated claims 1 and 13 of the ’032 patent and (2) that
claims 14 and 15 of the ’032 patent would have been obvi-
ous to a relevant artisan based on a combination of Ogino
and
U.S. Patent No. 8,233,224 (Chen). The PTO’s Patent
Trial and Appeal Board agreed. For claims 1 and 13, it
found that Ogino teaches an embodiment that meets all the
claim requirements, including the requirement of a lens as-
sembly with an effective focal length (EFL) that exceeds its
total track length (TTL). Apple Inc. v. Corephotonics, Ltd.,
IPR2018-01140, 2019 Pat. App. LEXIS 13253, at *20–31
(P.T.A.B. Dec. 3, 2019) (Board Decision). For claims 14 and
15, the Board found that a relevant artisan would have
been motivated to use a meniscus lens, as taught by Chen,
as the second lens element in the assembly, replacing
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COREPHOTONICS, LTD. v. APPLE INC. 3
Ogino’s biconcave second lens, and that doing so would
have been obvious.
Id. at *31–45.
Corephotonics timely appealed, and we have jurisdic-
tion under
28 U.S.C. § 1295(a)(4). Besides raising chal-
lenges to the merits of the Board’s decision, Corephotonics
presented a challenge under the Appointments Clause of
the Constitution, Art. II, § 2. After the Supreme Court re-
solved a similar constitutional challenge in United States
v. Arthrex, Inc.,
141 S. Ct. 1970 (2021), we remanded this
matter, while retaining jurisdiction, to give the Acting Di-
rector of the PTO the opportunity to consider reviewing the
Board decision (an opportunity Corephotonics indicated it
wanted). The Acting Director has now declined to review
the Board decision, and Corephotonics has informed us
that it does not challenge the Acting Director’s denial of
review, but seeks only our review of the Board’s decision.
We proceed to address Corephotonics’s challenges to the
merits of that decision. We affirm.
I
A
The ’032 patent describes a lens assembly intended for
use as a telephoto lens (a high-resolution lens) in “a porta-
ble electronic product such as a cellphone.” ’032 patent, col.
1, lines 16–19. The assembly includes a plurality of lenses
(“lens element[s]”) of varying thicknesses and refractive
power arranged in line along an optical axis running from
an object side (i.e., the side with the object to be photo-
graphed) to an image side (i.e., the side where the image of
the object is formed). See
id., col. 2, line 61, through col. 3,
line 9. Past the last lens element, on the image side of the
assembly, is an “image sensor” and “image plane” for cap-
turing the image.
Id., col. 3, lines 13–15. Some embodi-
ments include a cover glass element between the last lens
element and the image sensor.
Id., col. 3, lines 11–13. All
embodiments of the lens assembly described in the ’032 pa-
tent include a “second plastic lens element” (starting from
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4 COREPHOTONICS, LTD. v. APPLE INC.
the object side) “having a meniscus convex object-side sur-
face.”
Id., col. 2, lines 65–67. A meniscus lens is a lens with
one convex side and one concave side. J.A. 487.
The ’032 patent purports to improve on previous lens
assemblies by reducing the ratio of the assembly’s TTL to
its EFL. ’032 patent, col. 1, lines 30–38. The TTL of a min-
iature lens assembly measures distance along the assem-
bly’s optical axis and “determines how long or thick a
camera will be,” while the EFL “determines how well the
camera performs at capturing images of small or distant
objects, as opposed to closer objects.” J.A. 1668 ¶ 34 (Dec-
laration of Corephotonics expert, Dr. Duncan Moore). A
greater EFL gives the camera a narrower “field of view,”
which yields an image that “can resolve precise features
like . . . tree branches” for “objects at greater distances.”
J.A. 1668 ¶ 34. Reducing the TTL/EFL ratio results in a
thin lens with the capability of capturing far-away objects
in great detail. J.A. 1668–69 ¶¶ 34–35. “In all embodi-
ments [described in the ’032 patent], TTL is smaller than
the EFL, i.e., the TTL/EFL ratio is smaller than 1.0.” ’032
patent, col. 1., lines 63–65.
Table 1 of the ’032 patent provides details about the
lens elements in one particular embodiment of the assem-
bly, including the elements’ radii of curvature, their diam-
eters, their thicknesses, and the space between them along
the optical axis.
Id., col. 3, lines 17–37; see also
id., col. 4,
lines 2–17 (Table 1). The embodiment described in Table 1
has an EFL of 6.90 mm and a TTL of 5.904 mm, resulting
in a TTL/EFL ratio of 0.855.
Id., col. 4, lines 35–37.
Claim 1, the only independent claim at issue, recites:
1. A lens assembly, comprising: a plurality of re-
fractive lens elements arranged along an optical
axis, wherein at least one surface of at least one of
the plurality of lens elements is aspheric, wherein
the lens assembly has an effective focal length
(EFL), and wherein the lens assembly has a total
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COREPHOTONICS, LTD. v. APPLE INC. 5
track length (TTL) of 6.5 millimeters or less and a
ratio TTL/EFL of less than 1.0, wherein the plu-
rality of lens elements comprises, in order from an
object side to an image side, a first lens element
with positive refractive power and a second lens el-
ement with negative refractive power, wherein a
focal length fl of the first lens element is smaller
than TTL/2.
Id., col. 7, lines 43–53 (emphasis added). Claim 13 depends
on claim 1; on appeal, Corephotonics does not challenge the
Board’s finding that Ogino teaches claim 13’s additional
limitation. Claims 14 and 15 add limitations, only one of
which is at issue on appeal: “wherein the first lens element
has a convex object-side surface and a convex or concave
image-side surface and wherein the second lens element is
a meniscus lens having a convex object-side surface.”
Id.,
col. 8, lines 46–49;
id., col. 8, lines 50–51.
B
Apple’s main reference, Ogino, describes several lens
assemblies containing five lens elements for use in a cell
phone. See Ogino, col. 1, line 52, through col. 2, line 18.
Apple relied in particular on Example (Figure) 6 for its an-
ticipation argument. In Figure 6, the lens elements are la-
belled L1 through L5, and the second lens element (L2)
“has a biconcave shape.”
Id., col. 13, lines 1–16. Figure 6
also includes a cover glass (CG) that “may be disposed be-
tween the fifth lens [element] L5 and the imaging device
100.”
Id., col. 5, lines 55–57. Ogino states: “Alternatively,
an effect similar to the optical member CG may be given to
the fifth lens L5 or the like by applying a coating to the fifth
lens L5 or the like without using the optical member CG.
Thereby, it is possible to reduce the number of components,
and to reduce the total length.”
Id., col. 5, line 65, through
col. 6, line 2 (emphases added).
Ogino includes a table (Table 11) with values corre-
sponding to the parameters in Example 6 illustrated in
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6 COREPHOTONICS, LTD. v. APPLE INC.
Figure 6. See
id., col. 22, lines 11–35. The table includes
numbers for the thicknesses of the lens elements and the
spacing between the components of the assembly. See
id.,
col. 22, lines 18–34. At the top, Table 11 states: “f = 4.428,
Bf = 1.424, TL = 4.387,”
id., col. 22, line 14, where f is “the
focal length . . . of the whole system,” Bf is “the back focal
length,” and TL is “the total lens length,”
id., col. 14, lines
48–50. Ogino elaborates: “In addition, the back focal
length Bf indicates an air-converted value, and likewise, in
the total lens length TL, the back focal length portion uses
an air-converted value.”
Id., col. 14, lines 47–53. Corepho-
tonics’s expert, Dr. Moore, explained: “the TL replaces the
physical thickness of the optical member [cover glass] with
a value equal to its thickness divided by the ratio of the
[cover glass’s] index of refraction to that of air.” J.A. 1684
¶ 66. Based on Ogino’s contemplation of an alternative
that does not use a cover glass, and on Table 11 and Figure
6, Apple argued in its petition that Ogino teaches an em-
bodiment without a cover glass where the TTL/EFL ratio
is less than 1 (a 4.387 focal length is less than a 4.428 total
lens length), meeting the key disputed element of claim 1
for purposes of anticipation. J.A. 129.
Apple also argued that claims 14 and 15 of the ’032 pa-
tent would have been obvious to a relevant artisan in view
of Ogino and Chen. Chen relates to a lens assembly, like
Ogino. But unlike Ogino, whose second lens is biconcave,
Chen teaches a second lens element “having a convex ob-
ject-side surface 111 and a concave image-side surface
112”—i.e., a meniscus lens. Chen, col. 6, line 51, through
col. 7, line 4; see also J.A. 478 ¶ 56 (Declaration of Apple
expert, Dr. José Sasián). Apple argued that a relevant ar-
tisan would be motivated to substitute Chen’s second lens
for Ogino’s, relying on testimony of its expert, Dr. Sasián.
According to Dr. Sasián, an advantage of a meniscus
lens is that it reduces “vignetting,” J.A. 482 ¶ 61, which “is
the blocking of rays on or near the outer edges of a lens
system,” J.A. 475 ¶ 51, and is undesirable for “lens systems
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COREPHOTONICS, LTD. v. APPLE INC. 7
designed for cellular telephones,” for which “relative illu-
mination . . . greater than 50%” is sought, J.A. 479–80 ¶ 58;
see also J.A. 1060 (identifying desirable specifications for
cellphone lenses). Dr. Sasián explained that a relevant ar-
tisan, using common design software (e.g., Zemax), would
have understood that the biconcave shape of the second
lens element in Ogino’s Figure 6 produced a relative illu-
mination under 50%, J.A. 479–81 ¶¶ 58–60, and that use
of a meniscus lens would raise that figure by reducing vi-
gnetting, J.A. 483 ¶ 62. Dr. Sasián also stated that a rele-
vant artisan would be motivated to use a meniscus lens to
reduce both “ray aberration,” J.A. 482–85 ¶¶ 60–64, and
the “chief ray angle (CRA)” to levels desired for mobile
phone lenses, J.A. 476–77 ¶ 53. Dr. Sasián concluded that
substituting Chen’s meniscus lens into Figure 6 was “a rou-
tine lens adjustment” that a relevant artisan would have
been motivated to make. J.A. 479–81 ¶¶ 58–60.
Corephotonics disputed Apple’s contentions. With re-
spect to the anticipation argument based on the “TL” num-
ber in Ogino’s Table 11, Corephotonics responded that the
Table 11 “TL” number was based on a “theoretical” air-con-
verted value, not an actual total track length of an embod-
iment that omitted the cover glass—which would require
information not in Ogino about where the coverless sensor
would be located. J.A. 1140–42. With respect to Apple’s
obviousness argument, Corephotonics responded that
Ogino encourages the use of a biconcave lens to reduce im-
age aberrations and that a relevant artisan would not have
been motivated to replace the second lens element with a
meniscus lens out of the “‘near-infinite’” possibilities for
modification. Board Decision, 2019 Pat. App. LEXIS
13253, at *38 (quoting Patent Owner Response).
C
The Board ruled for Apple. In agreeing that Ogino
teaches a lens assembly that anticipates claims 1 and 13,
the Board found that the “TL” value listed in Table 11 does
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8 COREPHOTONICS, LTD. v. APPLE INC.
teach an actual total track length in an embodiment with-
out the cover glass, calculated by adding (a) the widths of
the five lenses and the spacing between them as listed in
the table and (b) “the back focal length Bf given in Table 11
as 1.424 mm,” a value that represented the distance be-
tween the final lens and the image plane.
Id. at *26. The
Board noted that “Ogino explicitly discloses that the cover
glass CG can be removed,”
id., and cited the recognition by
Corephotonics’s expert, Dr. Moore, that “cover glass is op-
tional” and “if it is not present, it need not be counted in
the TTL measurement,”
id. at *27 (citing J.A. 1916 (Tr. at
70:2–22) (Dr. Moore Deposition)). The Board found that
the air-converted value indicates the distance at which the
image sensor must be placed from the final lens when the
cover glass is omitted.
Id. at *28–29. On this basis, the
Board found that Ogino teaches a TTL/EFL of less than 1,
resolving the key issue for anticipation.
Id.
As to obviousness, the issue for claims 14 and 15 of the
’032 patent, the Board agreed with Apple that a relevant
artisan would have been motivated and found it obvious to
replace the biconcave second lens element in Ogino with
the corresponding meniscus lens in Chen.
Id. at *31–45.
The Board credited Dr. Sasián’s opinion that vignetting
would be undesirable in a telephoto lens and that replacing
Ogino’s second lens with Chen’s second lens would reduce
vignetting, mitigate ray aberration, reduce the chief ray
angle, and increase “relative illumination” to over 50%, mo-
tivating a relevant artisan to make the replacement for a
cellphone lens system.
Id. at *36–38. The Board rejected
Corephotonics’s argument that the proposed substitution
would require selecting such a change out of a “near infi-
nite” number of possible modifications, pointing out that
both experts agreed that relevant artisans in this field of-
ten begin with a lens assembly of “suitable design” and
then use software to “modify it based on teachings of other
systems or existing knowledge.”
Id. at *40–43. Therefore,
a relevant artisan would have found it “routine” to change
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COREPHOTONICS, LTD. v. APPLE INC. 9
one element of a lens system to improve a desired element
(with the software doing the rest of the work) and would
have been motivated to make the change to a meniscus lens
in order to reduce vignetting and reduce ray aberration.
Id.
at *41–42.
II
We review the Board’s legal conclusions de novo and its
factual findings for substantial-evidence support. Arendi
S.A.R.L. v. Apple Inc.,
832 F.3d 1355, 1360 (Fed. Cir. 2016).
The ruling on anticipation is a factual determination. Wa-
sica Finance GmbH v. Continental Automotive Sys., Inc.,
853 F.3d 1272, 1278 (Fed. Cir. 2017). The ruling on obvi-
ousness is a legal conclusion, based on underlying determi-
nations of fact. PersonalWeb Techs., LLC v. Apple, Inc.,
917
F.3d 1376, 1381 (Fed. Cir. 2019). Such factual determina-
tions include whether a prior-art reference teaches away
and whether a relevant artisan would have been motivated
to make a combination of prior-art references. Gen. Elec.
Co. v. Raytheon Techs. Corp.,
983 F.3d 1334, 1345 (Fed. Cir.
2020).
A
For a reference to anticipate a claim under
35 U.S.C.
§ 102, “each claim element must be disclosed, either ex-
pressly or inherently, in a single prior art reference, and
the claimed arrangement or combination of those elements
must also be disclosed, either expressly or inherently, in
that same prior art reference.” Therasense, Inc. v. Becton,
Dickinson & Co.,
593 F.3d 1325, 1332–33 (Fed. Cir. 2010).
Here, the anticipation issue comes down to whether Ogino
teaches a lens assembly in which the cover glass is omitted
and the resulting total track length is 4.387 mm (the TL
number in Table 11). If it does, that number is undisput-
edly less than the effective focal length (4.428 mm), satis-
fying the claim 1 requirement of TTL/EFL < 1.0—the only
contested issue now regarding anticipation of claims 1 and
13.
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10 COREPHOTONICS, LTD. v. APPLE INC.
The Board found that Ogino teaches an embodiment of
Figure 6 that does not include a cover glass and for which
the 4.387 TL value in Table 11 represents a physical length
expressing the total track length of that embodiment.
Board Decision, 2019 Pat. App. LEXIS 13253, at *25–29.
Ogino supports the finding. After describing its assembly
and the inclusion of a cover glass element, Ogino states:
Alternatively, an effect similar to the optical mem-
ber CG may be given to the fifth lens L5 or the like
by applying a coating to the fifth lens L5 or the like
without using the optical member CG. Thereby, it
is possible to reduce the number of components,
and to reduce the total length.
Ogino, col. 5, line 65, through col. 6, line 2 (emphases
added). That language contemplates an embodiment of
Ogino’s lens assembly without a cover glass element and
further recognizes that removing that element will reduce
the assembly’s total length, i.e., the “total lens length,”
id.,
col. 14, line 50. The Board could have reasonably found
that the reduction is a reduction to the TL value in Table
11, in what the ’032 patent calls the total track length. As
Dr. Sasián explained, summing the values in Table 11
where the cover glass is included (D2–D13) results in a
track length of 4.489 mm; and when Figure 6 is considered
without the cover glass, the total track length is obtained
by summing the thicknesses of the lens elements and their
distances from one another (values D2–D10), while exclud-
ing the thickness of and space in front of the cover glass
(values D11–13), but adding in a back-focal-length value to
represent the spacing in front of the coverless sensor. See
J.A. 502; 1441–42 (Tr. 103:18–104:1), 2071 (Tr. 67:11–18);
Ogino, Table 11; see also Board Decision, 2019 Pat. App.
LEXIS 13253, at *25–26. This calculation adds 2.963 mm
(for D2–D10) to 1.424 mm (the back focal length, Bf) to re-
sult in a track length of 4.387 mm—which is the TL value
stated in Table 11. Ogino, Table 11. This evidence permit-
ted the Board to find that the 4.387 mm value represents a
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COREPHOTONICS, LTD. v. APPLE INC. 11
total track length of a coverless embodiment, supporting
the anticipation finding for claims 1 and 13.
B
With respect to claims 14 and 15 of the ’032 patent,
Corephotonics contends that the Board erred by determin-
ing that a relevant artisan would have been motivated to
replace the biconcave lens from Ogino—which it describes
as an “essential feature” of the second lens element—with
the meniscus lens from Chen. Corephotonics Opening Br.
at 42–43. Corephotonics focuses on the statement in Ogino
that the second lens must be biconcave to reduce the as-
sembly’s track length, see Ogino, col. 7, lines 39–42, and
contends that a relevant artisan who would be motivated
to remove the cover glass in Figure 6 to reduce the total
track length would not counteract that decision by select-
ing a meniscus lens that would not similarly reduce the
track length, see Corephotonics Opening Br. at 42–43.
Corephotonics also argues that the Board erred by accept-
ing the motivation that Apple has offered for the combina-
tion of Chen and Ogino—specifically, that a relevant
artisan would have sought to reduce vignetting by imple-
menting a meniscus lens—because vignetting is not inher-
ently undesirable and because nothing in Chen discusses
the use of a meniscus lens as the cause of reduced vignet-
ting.
Id. at 44–45.
Corephotonics does not address the Board’s finding
that a relevant artisan “would have been further motivated
to modify Ogino in view of [Chen]’s teachings concerning
its second lens element, in order to reduce aberration and
reduce the [chief ray angle].” Board Decision, 2019 Pat.
App. LEXIS 13253, at *37–38 (citing J.A. 476 ¶ 53 (Dr. Sas-
ián Declaration)). Those further motivations appear to be
independent bases for the Board’s finding of a motivation
to combine Ogino and Chen, sufficing by themselves to af-
firm the Board’s motivation-to-combine analysis (the only
meaningfully contested aspect of the obviousness
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12 COREPHOTONICS, LTD. v. APPLE INC.
conclusion). See Impax Labs. Inc. v. Lannett Holdings Inc.,
893 F.3d 1372, 1377–78 (Fed. Cir. 2018); SmithKline Bee-
cham Corp. v. Apotex Corp.,
439 F.3d 1312, 1319 (Fed. Cir.
2006). But even as to what Corephotonics does challenge
in this court, the Board had before it substantial evidence
to support its finding.
The Board found, based on evidence that Apple pre-
sented from an optics textbook, see J.A. 761, that vignetting
is a well-known “issue” and that a relevant artisan would
have been motivated to correct Ogino by using a meniscus
lens because the artisan would have understood that such
a lens would not only reduce vignetting but would also “re-
sult in relative illumination over 50%, which is known to
be desirable,” Board Decision, 2019 Patent App. LEXIS
13253, at *36–37 (citing J.A. 475–79 ¶¶ 51, 57). The evi-
dence supports that finding. J.A. 475–79 ¶¶ 51–58; see also
J.A. 1060 (article suggesting relative illumination of more
than 50%). Indeed, Ogino itself states that it is “advanta-
geous to reduce ‘deterioration in the light receiving effi-
ciency and occurrence of color mixture due to increase of
incident angle’ [i]n order ‘to achieve optimum optical per-
formance.’” Board Decision, 2019 Patent App. LEXIS
13253, at *37–38 (quoting Ogino, col. 7, lines 21–25).
Further, despite language in Ogino explaining that the
rationale for using a biconcave second lens element is to
reduce track length, Ogino, col. 7, lines 39–42, nothing in
Ogino “would have the effect of discrediting or discouraging
the use of a meniscus shaped lens.” Board Decision, 2019
Patent App. LEXIS 13253, at *38–40; see also In re Fulton,
391 F.3d 1195, 1201 (Fed. Cir. 2004) (“The prior art’s mere
disclosure of more than one alternative does not constitute
a teaching away from any of these alternatives because
such disclosure does not criticize, discredit, or otherwise
discourage the solution claimed . . . .”). Ogino states that
“the present invention is not limited to the above-men-
tioned embodiments” and that the lens elements’ “values of
the radius of curvature” and “aspheric surface
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COREPHOTONICS, LTD. v. APPLE INC. 13
coefficient[s]” may be modified. Ogino, col. 16, lines 11–19.
Substituting a biconcave lens element for a meniscus one
would be one way to make such modifications. See J.A.
481–82 (Dr. Sasián Declaration); J.A. 605, 613–17 (optics
textbook).
Nor is the modification to Ogino based on Chen a result
of “impermissible hindsight” as Corephotonics suggests.
Corephotonics Opening Br. at 46–48. The Board found that
both experts agreed that when seeking to improve a lens
assembly, a relevant artisan “would have . . . start[ed] with
a suitable design and then look[ed] to modify it based on
teachings of other systems or existing knowledge.” Board
Decision, 2019 Pat. App. LEXIS 13253, at *41–42; see also
J.A. 476 ¶ 53, 481–82 ¶ 60 (Dr. Sasián Declaration), 1905
(Tr. 27:19–29:3) (Dr. Moore Deposition). The Board cred-
ited Dr. Sasián’s testimony that switching a biconcave lens
for a meniscus lens “‘would be a routine lens adjustment’”
for a relevant artisan, and that such an artisan “would
have understood that the undesirable vignetting of Ogino
would be mitigated by modifying the shape of the second
lens.” Board Decision, 2019 Pat. App. LEXIS 13253, at
*41–42 (quoting J.A. 147); see also J.A. 481–82 ¶ 60. There
is thus substantial evidence supporting the Board’s finding
that a relevant artisan would have been motivated to com-
bine Ogino’s Figure 6 with Chen’s second lens to arrive at
the challenged claims.
III
For the foregoing reasons, the judgment of the Patent
Trial and Appeal Board is affirmed.
AFFIRMED
