Dako Denmark A/S v. Leica Biosystems Melbourne Party Ltd. ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAKO DENMARK A/S,
Appellant
v.
LEICA BIOSYSTEMS MELBOURNE PARTY LTD.,
Appellee
______________________
2015-1997
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. 95/001,613,
95/001,692.
-----------------------------------------------------------------------
DAKO DENMARK A/S,
Appellant
v.
LEICA BIOSYSTEMS MELBOURNE PARTY LTD.,
Appellee
______________________
2016-1000
______________________
2 DAKO DENMARK A/S v. LEICA BIOSYSTEMS MELBOURNE
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. 95/001,671.
______________________
Decided: December 2, 2016
______________________
JOHN M. GRIEM, JR., Carter Ledyard & Milburn LLP,
New York, NY, argued for appellant. Also represented by
THEODORE YOUNG MCDONOUGH.
DAVID G. MANGUM, Parsons Behle & Latimer, Salt
Lake City, UT, argued for appellee. Also represented by
C. KEVIN SPEIRS; DANA M. HERBERHOLZ, Boise, ID.
______________________
Before PROST, Chief Judge, REYNA and HUGHES, Circuit
Judges.
PROST, Chief Judge.
These appeals arise from two inter partes reexamina-
tions that invalidated the challenged claims of U.S. Pa-
tent No. 7,217,392 (“’392 patent”) and a continuation of
that patent, U.S. Patent No. 7,553,672 (“’672 patent”). In
those reexaminations, the United States Patent and
Trademark Office, Patent Trial and Appeal Board
(“Board”) determined that the claims of the ’392 patent
are invalid as obvious under 35 U.S.C. § 103 and that the
claims of the ’672 patent are invalid as anticipated under
35 U.S.C. § 102 and obvious under 35 U.S.C. § 103. On
appeal, Dako Denmark A/S (“Dako”) challenges the
Board’s determinations with respect to claim 7 of the ’392
patent and claim 2 of the ’672 patent. For the reasons
discussed below, we affirm.
DAKO DENMARK A/S v. LEICA BIOSYSTEMS MELBOURNE 3
BACKGROUND
I
Dako is the assignee of both the ʼ392 patent and the
’672 patent. On May 3, 2011, Leica Biosystems Mel-
bourne Party Ltd. (“Leica”) filed a request for inter partes
reexamination of the ʼ392 patent. Shortly thereafter, Leica
filed a second request regarding the ’392 patent. The
Board granted both requests and subsequently merged
the reexaminations. Upon reexamination, the patent
examiner rejected all the issued claims of the ’392 patent.
Dako only appealed the examiner’s rejection of independ-
ent claim 7 to the Board. On appeal, the Board affirmed
the examiner’s rejection, concluding that the claim was
obvious based on the combination of two prior art refer-
ences—U.S. Patent No. 5,439,649 (“Tseung”), and U.S.
Patent No. 5,273,905 (“Muller”).
On June 29, 2011, Leica requested inter partes reex-
amination of the ’672 patent. After reexamination, the
examiner rejected four of the issued claims. Dako only
appealed the rejection of dependent claim 2 to the Board.
On appeal, the Board affirmed the examiner’s rejection,
concluding that the claim was both anticipated by Tseung
and obvious based on Tseung.
Dako now appeals the Board’s decisions. We have ju-
risdiction under 28 U.S.C. § 1295(a)(4)(A).
We address each patent in turn.
II
The ’392 patent relates to slide staining devices “for
the application and removal of reagents to biologic tissue
sections mounted on microscope slides.” ʼ392 patent col. 2
ll. 7–9. Slide staining is a tool used to aid in the micro-
scopic examination of tissue samples. Id. at col. 1 ll. 17–
19. In preparation for examination, tissue sections are
thinly sliced before being placed on a microscope slide,
4 DAKO DENMARK A/S v. LEICA BIOSYSTEMS MELBOURNE
and are “nearly transparent” if untreated. Id. at col. 1 ll.
19–21. In order to visualize various features of the sam-
ples, different techniques are applied which have the
effect of coloring, or staining, the sample. Id. at col. 1 ll.
20–29. Because different staining techniques “require[]
the addition and removal of reagents in a defined se-
quence for specific time periods, at defined tempera-
tures[,] . . . a need arises for a slide stainer that can
perform a diversity of stains simultaneously under com-
puter control, as specified by the technologist.” Id. at col.
1 ll. 29–35.
In addition to the need for a slide stainer that can ap-
ply different processes to a single slide, the specification
identifies a further need for a slide stainer that is able to
simultaneously process multiple slides in different ways.
See id. at col. 2 ll. 7–16. As different staining techniques
potentially require that slides be heated at different
temperatures, and for different times, the ʼ392 patent
describes slide staining systems and methods that “al-
low[] for the heating of each slide to its own specified
temperature.” Id. at col 2 ll. 13–18.
In order to facilitate this individualized control, the
patent describes a system containing multiple “slide
frames” in which each slide frame contains a separate
heating element. Id. at col. 4 ll. 4–11. Figure 5, shown
below, illustrates one embodiment of a slide frame and, “is
a top view of the slide frame base with five microscope
slides in their appropriate positions, showing the area to
which heat is applied.” Id. at col. 3 ll. 17–20.
DAKO DENMARK A/S v. LEICA BIOSYSTEMS MELBOURNE 5
Id. at fig.5.
Claim 7 of the ’392 patent, which the Board found ob-
vious, reads:
7. A microscope slide stainer, comprising:
a staining protocol program comprising instruc-
tions for applying reagents and heat to a plu-
rality of microscope slides bearing biological
samples;
a plurality of slide supports, each support being
comprised of a heating element that underlies
only one microscope slide and having a surface
on which only one microscope slide rests so as
to transfer heat to the one microscope slide;
6 DAKO DENMARK A/S v. LEICA BIOSYSTEMS MELBOURNE
at least one reagent dispenser that can dispense a
liquid reagent onto a microscope slide on one of
the slide supports;
a movable carriage that causes the reagent dis-
penser to be aligned over a desired microscope
slide on one of the slide supports, as specified
in the slide staining program, so that reagent
dispensed out of the reagent dispenser drops
onto an underlying microscope slide on one of
the slide supports; and
a control system that issues commands to cause
relative motion between the reagent dispenser
and the microscope slide on one of the slide
supports so that the reagent dispenser is
aligned over the microscope slide on one of the
slide supports, as specified in the staining pro-
tocol program, and that issues commands to
cause the heating elements to heat at the times
specified in the staining protocol program, the
control system controlling heating of one heat-
ing element to a different temperature as an-
other.
’392 patent col. 13 l. 14–col. 14 l. 3 (emphasis added).
In its analysis, the Board first determined that
Tseung, a prior art reference, disclosed every claim limi-
tation except the requirement that each heating element
underlies only one microscope slide. To supply this limi-
tation, the Board looked to Muller, a second prior art
reference, which disclosed individual heating elements for
each slide. The Board also determined that there was a
motivation to combine Tseung with Muller because Mul-
ler’s teachings were “directly pertinent to Tseung.” No.
15-1997 J.A. 15. The Board explained that both refer-
ences used heating in their automated staining devices
and that this provided a reason to combine the references.
DAKO DENMARK A/S v. LEICA BIOSYSTEMS MELBOURNE 7
In finding a motivation to combine, the Board ad-
dressed, and rejected, four arguments Dako made that
were supported only by testimony from Dr. Floyd, its
expert, and Dr. Bogen, one of the named inventors of the
’392 patent.
First, Dako argued that Muller was used for in situ
hybridization (“ISH”), whereas Tseung was designed for
immunohistochemical (“IHC”) staining, which is a differ-
ent technique. The Board rejected this argument based
on the express disclosures of both Tseung and Muller.
The Board explained that Tseung’s disclosure was not
limited to IHC staining and contemplates other staining
techniques. The Board also noted that, even if Tseung
were limited to IHC staining, Dako’s argument would not
be persuasive because Muller also expressly discusses
IHC staining, in addition to ISH.
Second, Dako argued that a skilled artisan would not
be motivated to combine Tseung and Muller because
modifying Tseung, which describes four heating blocks
with ten slides, to have forty individual heating blocks
would increase the complexity and reduce the overall
reliability of the system. In further support of this argu-
ment, Dako asserted that for two years after the priority
date of the patent, there were no systems on the market
that provided individualized heating controls. According
to Dako, this “support[ed] the contention that the in-
creased cost and complexity associated with individual
heating was a non-trivial barrier.” Id. at 2920.
The Board also found this argument unconvincing. It
explained that the disclosures in both Muller and Tseung
showed that having multiple heaters was within the
knowledge of a person of ordinary skill. The Board also
noted that Tseung was not limited to the preferred em-
bodiment and could be modified to support only one slide
on each heating block, which would result in a system
identical to Tseung, only reduced in size.
8 DAKO DENMARK A/S v. LEICA BIOSYSTEMS MELBOURNE
Third, Dako argued that the staining part of IHC is
performed at room temperature and, consequently, a
person of ordinary skill would not recognize the benefit of
adding heating elements to Tseung. The Board found
that this argument was directly rebutted by Tseung’s
statement that “some staining techniques can be en-
hanced by providing heat so that either incubation or
drying times are shortened, thereby increasing the speed
of the overall operation.” Id. at 18 (quoting Tseung col.
12, ll. 6–9). The Board then stated that this “not only
provide[d] a reason[] to have utilized heating in [Tseung],
but also to have ‘adapted’ Muller’s approach of individual-
ized heaters for each slide.” Id.Finally, Dako argued that, at the time of the inven-
tion, one of ordinary skill would not have attempted to
create an automated staining system because experts in
the field did not believe that special staining processes
could be automated at all. The Board rejected this argu-
ment because it found that neither Tseung nor Muller
was restricted to special staining protocols.
The Board thus concluded that a person of ordinary
skill would have been motivated to combine Tseung with
Muller to arrive at the claimed invention.
The Board next turned to Dako’s evidence of second-
ary considerations. For secondary considerations, Dako
argued that the invention had been copied by Ventana, a
competitor. 1 In support, Dako relied on Dr. Bogen’s
declaration, which stated that Ventana obtained a confi-
dential business plan from CytoLogix, the original owner
of the ’392 patent. According to Dako, this business plan
described the invention of the ’392 patent. Dr. Bogen’s
declaration further stated that Ventana subsequently
1 This was the same argument that Dako previous-
ly brought before the examiner.
DAKO DENMARK A/S v. LEICA BIOSYSTEMS MELBOURNE 9
used the confidential business plan to create its own
device. Dr. Bogen also attached a transcript of a speech
by Ventana’s chairman, Mr. Schuler, who boasted that
Ventana launched a competitive product six months after
seeing the CytoLogix business plan. As additional evi-
dence of copying, Dako pointed to a license agreement in
which Ventana licensed two related patents from Dako,
and a patent application Ventana filed that included
individual heating of slide samples.
The Board found Dako’s secondary consideration evi-
dence unpersuasive. According to the Board, Dako did
not provide evidence beyond the declaration that Ventana
created a device with individual heating elements for each
slide support. The Board also stated that neither Mr.
Schuler’s statement nor Ventana’s patent application
established the existence of such a device. The Board
therefore found that, because it could not adequately
confirm that Ventana had created a device with individu-
al heating elements, no nexus had been established. The
Board also noted that, even had a nexus been established,
the evidence of copying would not be dispositive in this
case in light of the other evidence of obviousness.
Consequently, after reviewing all the evidence before
it, the Board determined that a preponderance of the
evidence supported the conclusion that claim 7 of the ’692
patent would be obvious to a person of ordinary skill in
the art.
III
Whether a claimed invention is obvious is a question
of law based on underlying facts. Graham v. John Deere
Co., 383 U.S. 1, 17–18 (1966). We review the Board’s
ultimate conclusion of obviousness de novo and any
underlying factual determinations for substantial evi-
dence. In re Gartside, 203 F.3d 1305, 1316 (Fed. Cir.
2000).
10 DAKO DENMARK A/S v. LEICA BIOSYSTEMS MELBOURNE
Dako does not contest the Board’s finding that, to-
gether, Tseung and Muller disclose every element of the
patented claim. Dako makes three arguments challeng-
ing the Board’s conclusion that claim 7 of the ’392 patent
is obvious: (1) the Board did not give proper consideration
to the evidence of secondary considerations; (2) the Board
inappropriately treated the ability to combine prior art
references as a motivation to combine them; and (3) the
Board did not give proper weight to Dako’s copying and
long-felt need arguments. We address each of Dako’s
arguments in turn.
A
First, Dako argues that the Board failed to consider
evidence of secondary considerations before it made its
ultimate conclusion of obviousness. Dako bases this
argument on the Board’s statement after finding a moti-
vation to combine that “it would have been obvious to one
of ordinary skill in the art to implement individual slide
heating in Tseung for those staining procedures which are
accomplished in an open system and for which heating to
different temperatures is desired.” See No. 15-1997 J.A.
16. According to Dako, because this statement appears
before the Board’s consideration of any evidence of sec-
ondary considerations, the Board made its ultimate
conclusion of obviousness before considering all the evi-
dence.
Reading the Board’s opinion in its entirety, it is clear
that the Board properly considered all the evidence before
coming to its ultimate legal conclusion. Indeed, in its
opinion, the Board expressly evaluated Dako’s evidence of
secondary considerations and appropriately considered it
before ultimately determining that the claim was obvious.
Therefore, we reject Dako’s arguments in this regard.
DAKO DENMARK A/S v. LEICA BIOSYSTEMS MELBOURNE 11
B
Dako next argues that the Board improperly deter-
mined that the ability to combine prior art references
established a motivation to combine. In support, Dako
points to portions of the Board’s decision in which it states
that “providing a plurality of slide heaters would have
been within the skill of the ordinary artisan” and relies on
Tseung’s language that “[n]umerous techniques exist for
heating microscope slides and can be adapted to the
present apparatus.” No. 15-1997 J.A. 18–19. According
to Dako, the Board never articulated a specific reason or
motivation to combine the references and ignored the
unrebutted testimony of its expert, Dr. Floyd, who testi-
fied at length that a person of ordinary skill would have
been discouraged from combining Tseung and Muller.
The existence of a motivation to combine is a factual
determination. Star Sci., Inc. v. R.J. Reynolds Tobacco
Co., 655 F.3d 1364, 1374–75 (Fed. Cir. 2011). Under a
substantial evidence standard of review, we must draw all
reasonable inferences in favor of the Board’s decision that
are supported by the record and should take care not to
make credibility determinations or to weigh the evidence.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150 (2000). “[A]lthough the court should review the
record as a whole, it must disregard all evidence favorable
to the [appellant] that the [factfinder] is not required to
believe.” Id. at 151.
Here, in support of its position, Dako exclusively re-
lies upon the testimony of its expert, Dr. Floyd. In his
declaration, Dr. Floyd stated that a person of ordinary
skill would not have been motivated to combine Tseung
with Muller because a person of ordinary skill would not
have appreciated a need to include individual heating to
the system of Tseung. Dr. Floyd further stated that
modifying Tseung to include individual heating elements
would increase the complexity of the system and substan-
12 DAKO DENMARK A/S v. LEICA BIOSYSTEMS MELBOURNE
tially increase the cost. Finally, Dr. Floyd stated that a
person of ordinary skill would not have combined Tseung
with Muller because Tseung related to IHC staining,
whereas Muller related to ISH staining.
The question before us is whether, based on all of the
evidence before the Board, a reasonable factfinder could
find that there was a motivation to combine Tseung and
Muller. The answer to this question is “yes.” A motiva-
tion to combine can be found in “any need or problem
known in the field of endeavor at the time of the invention
and addressed by the patent.” KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 420 (2007). “[T]he analysis need not
seek out precise teachings directed to the specific subject
matter of the challenged claim, for a court can take ac-
count of the inferences and creative steps that a person of
ordinary skill in the art would employ.” Id. at 418.
In its analysis, the Board primarily relied on Tseung’s
statement that “some staining techniques can be en-
hanced by providing heat so that either incubation or
drying times are shortened, thereby increasing the speed
of the overall operation.” No. 15-1997 J.A. 17 (quoting
Tseung, col. 12 ll. 6–9). According to the Board, this both
provided a reason to use heating in Tseung and adapt it to
use Muller’s individual heaters. Given the disclosures of
Tseung and Muller, this conclusion is supported by sub-
stantial evidence. Because Tseung teaches a system that
is “readily programmable to allow automated staining of
individual microscope slides with different techniques
without operator intervention in a single operation,” its
later discussion as to the benefits of heating slides would
reasonably motivate a person of ordinary skill to look for a
way to adapt the system to heat individual slides to
different temperatures. See Tseung col. 2 ll. 27–31.
In this case, the Board evaluated Dr. Floyd’s testimo-
ny and found it lacking against the express disclosures of
both Tseung and Muller. We will not disturb this deter-
DAKO DENMARK A/S v. LEICA BIOSYSTEMS MELBOURNE 13
mination. Therefore, the Board’s finding that a person of
ordinary skill would have been motivated to combine
Tseung and Muller is supported by substantial evidence.
C
Finally, Dako asserts that the Board discounted its
evidence of copying in finding that there was no nexus
between its proffered evidence and claim 7 of the ’392
patent. Dako also argues that the Board failed to consid-
er whether the evidence established the existence of a
long-felt need.
According to Dako, unrebutted evidence shows that
Ventana had access to CytoLogix’s business plan, that
Ventana’s product was substantially similar to Dako’s
product, and that a patent application subsequently filed
by Ventana disclosed a system that provides for separate
heating of individual microscope slides. Dako asserts that
this evidence compels only one conclusion—Ventana
copied the invention embodied by claim 7 of the ’392
patent.
In its opinion, the Board credited Dako’s evidence that
Ventana had access to CytoLogix’s business plan and that
the business plan disclosed a system with individual
heaters for each slide support. The Board found that this
was insufficient to establish a nexus because, aside from a
statement by Dr. Bogan which the Board deemed conclu-
sory, there was no record evidence showing that Ventana
produced, or attempted to produce, a device with individ-
ual heating elements after seeing the business plan. The
Board also determined that neither Mr. Schuler’s state-
ments nor Ventana’s subsequent patent application
established that Ventana ever attempted to copy the
patented feature.
The Board’s analysis here is supported by substantial
evidence. The Board considered Dr. Bogan’s testimony
and concluded that it was insufficient to establish a
14 DAKO DENMARK A/S v. LEICA BIOSYSTEMS MELBOURNE
nexus. The only other pieces of evidence Dako submitted
to establish copying were Mr. Schuler’s speech and Ven-
tana’s patent. The speech does not describe the features
of the product Ventana ultimately released, and the mere
existence of Ventana’s patent does not necessarily imply
that the patent is based on the specific product referred to
in Mr. Schuler’s statement. Because a reasonable fact-
finder could interpret the evidence Dako presented as
failing to provide a nexus, the Board’s conclusion is sup-
ported by substantial evidence.
Dako also argues that the evidence establishes the ex-
istence of a long-felt need. In support of this argument,
Dako points to aspects of Dr. Bogdan’s declaration and an
article attached as an exhibit thereto. But Dako never
made this argument before the Board or the examiner. In
its submissions to the Board, Dako only cited this evi-
dence to “support[] the contention that the increased cost
and complexity associated with individual heating was a
non-trivial barrier.” No. 15-1997 J.A. 2920. Before the
examiner, Dako only argued that copying was a secondary
consideration that supported non-obviousness, not that
there was a long-felt need. Id. at 3286–87.
Though Dako did present the evidence it now relies on
to the Board, it did not do so in the context of long-felt
need. It is hardly surprising, and not error, therefore,
that the Board considered the evidence in the context in
which it was presented, and not in the context of long-felt
need.
Thus, Tseung and Muller together disclose all the lim-
itations of claim 7 of the ’392 patent, and a person of
ordinary skill would have been motivated to combine
them. There is also a lack of evidence of secondary con-
siderations. Therefore, claim 7 of the ’392 patent is
invalid as obvious under 35 U.S.C. § 103.
DAKO DENMARK A/S v. LEICA BIOSYSTEMS MELBOURNE 15
IV
We now turn to the ’672 patent. The ’672 patent is a
continuation of the ’392 patent and shares a common
specification with the ’392 patent. ’672 patent at [60].
Claim 2 of the ’672 patent, which the Board found an-
ticipated by Tseung is at issue in this appeal. Claim 2
depends from claim 1. The claims read:
1. A method of processing samples mounted on
microscope slides comprising:
providing a plurality of slide supports on a plat-
form, each support being comprised of a heating
element that underlies at least one microscope
slide and having a surface on which the at least
one microscope slide and having a surface on
which the at least one microscope slide rests so
as to transfer heat to the at least one micro-
scope slide, said heating elements being capa-
ble of heating said microscope slides, under
independent electronic control to heat some
slides to a different temperature than other
slides;
placing two or more microscope slides on the plat-
form;
providing relative motion between the platform
and a liquid dispenser;
dispensing liquid from the liquid dispenser onto
the slides; and
on the platform, heating one slide to a different
temperature than a second slide.
2. A method of processing samples mounted on
microscope slides as claimed in claim 1, where-
in each slide support accommodates only one
microscope slide.
16 DAKO DENMARK A/S v. LEICA BIOSYSTEMS MELBOURNE
Id. at col. 12 ll. 24–44 (emphases added).
In its decision, the Board first construed the term
“slide support,” in claim 2, which appears in the claim,
but not the specification. Before the Board, Dako argued
that the term should be construed as “a heating element
that underlies the only one microscope slide and has a
surface on which the only one microscope slide rests so as
to transfer heat to the at least one microscope slide.” No.
16-1000 J.A. 22. In support of this construction, Dako
argued that, because a slide support is “comprised of” a
heating element, it necessarily follows that a one-to-one
relationship must exist between a slide support and a
heating element. The Board disagreed. It determined
that the heating element described in claim 1 supports “at
least one” microscope slide, which indicates that it may
support multiple slides. The Board further determined
that there was no limitation in claim 2 which narrowed
this capability. The Board found additional support for
its interpretation from the ’392 patent, which expressly
disclosed a system in which a heating element underlies
only one slide.
Based on this construction, the Board determined
that a preponderance of the evidence supported the con-
clusion that Tseung met all the limitations of claim 2 and
thus anticipated it.
V
Claim construction is an issue of law based on under-
lying factual considerations. Teva Pharm. USA, Inc. v.
Sandoz, Inc., 135 S. Ct. 831, 838 (2015). We review the
Board’s ultimate construction de novo, and any underly-
ing factual determinations for substantial evidence.
Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1297
(Fed. Cir. 2015). In inter partes reexamination proceed-
ings, claims are given their “broadest reasonable interpre-
tation” consistent with the specification. In re Rambus,
Inc., 753 F.3d 1253, 1255 (Fed. Cir. 2014).
DAKO DENMARK A/S v. LEICA BIOSYSTEMS MELBOURNE 17
Dako makes one argument challenging the Board’s
conclusion that claim 2 of the ’672 patent is anticipated:
that the Board incorrectly construed “slide support” as not
requiring individual heating elements for each slide
support and that, under the correct construction, Tseung
does not anticipate. Dako does not argue that under the
Board’s construction Tseung would not be an anticipatory
reference.
According to Dako, claim 1 of the ’672 patent, from
which claim 2 depends, creates a “one-to-one correspond-
ence between slide supports and heating elements.” No.
16-1000 Appellant’s Br. 27. Dako asserts that this is “the
only interpretation that permits each single slide sup-
ported by each slide support of [c]laim 2 to heat each slide
to a different temperature.” Id.Dako’s argument is premised on the conclusion that
claim 2 requires individual slide supports to be capable of
individual temperature control. But, as the Board noted,
such a requirement is not apparent on the face of either
claim 1 or claim 2.
In claim 1, a slide support may support a plurality of
slides, and the limitation that “each support being com-
prised of a heating element that underlies at least one
microscope slide” does not preclude one heating element
from underlying multiple slide supports. Indeed, figure 5
of the specification discloses exactly such an embodiment.
See ’672 patent fig.5; id. at col. 3 ll. 16–18 (stating that
figure 5 “is a top view of the slide frame base with five
microscope slides in their appropriate positions, showing
the area to which heat is applied”).
Claim 2 only limits the slide support, not the heating
element. Consequently, it does nothing to change the
conclusion that, as in claim 1, a single heating element
may underlie multiple slide supports.
18 DAKO DENMARK A/S v. LEICA BIOSYSTEMS MELBOURNE
In further support of its construction, Dako points to
language in claim 1 that requires the ability to “heat[] one
slide to a different temperature than a second slide.” Id.at col. 12 ll. 40–41. This argument does not render the
Board’s interpretation unreasonable in light of the specifi-
cation. The quoted limitation refers to the capabilities of
the platform and is met when two heating blocks are
present in the system, regardless of how many slide
supports are present.
We therefore agree with the Board’s construction.
Though the construction is broader than Dako’s proposed
construction, it is not unreasonable and is consistent with
both the claims and the specification. See In re NTP, Inc.,
654 F.3d 1268, 1274 (Fed. Cir. 2011).
Because we agree with the Board’s construction of
“slide support,” and, further, because Dako does not argue
that Tseung fails to anticipate under this construction,
claim 2 of the ’672 patent is invalid under 35 U.S.C. § 102.
CONCLUSION
For the foregoing reasons, we affirm the Board’s rejec-
tions of claim 7 of the ’392 patent and claim 2 of the ’672
patent.
AFFIRMED