Case: 19-1874     Document: 57    Page: 1    Filed: 08/26/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                   ______________________

                SEALY TECHNOLOGY, LLC,
                        Appellant

                             v.

      SSB MANUFACTURING COMPANY, FKA
         SIMMONS BEDDING COMPANY,
                    Appellee
             ______________________

                         2019-1874
                   ______________________

     Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. 95/001,549.
                   ______________________

                  Decided: August 26, 2020
                   ______________________

    STEVEN MOORE, Kilpatrick Townsend & Stockton LLP,
 San Francisco, CA, for appellant. Also represented by N.
 DEAN POWELL, Winston-Salem, NC.

     JON STEVEN BAUGHMAN, Paul, Weiss, Rifkind, Wharton
 & Garrison LLP, Washington, DC, for appellee. Also rep-
 resented by STEFAN GEIRHOFER, MEGAN FREELAND
 RAYMOND.
                 ______________________
Case: 19-1874     Document: 57      Page: 2   Filed: 08/26/2020




 2      SEALY TECHNOLOGY, LLC   v. SSB MANUFACTURING COMPANY



     Before PROST, Chief Judge, REYNA and HUGHES, Circuit
                            Judges.
 PROST, Chief Judge.
     Sealy Technology, LLC (“Sealy”) appeals from the deci-
 sion of the United States Patent and Trademark Office, Pa-
 tent Trial and Appeal Board (“Board”) in an inter partes
 reexamination concluding that the single claim of United
 States Design Patent No. D622,531 (“the ’531 patent”) is
 unpatentable under 35 U.S.C. § 103. See Simmons Bed-
 ding Co. v. Sealy Tech. LLC, No. 2014-007985, 2015 WL
 1481100 (P.T.A.B. Mar. 31, 2015) (“Decision I”); Simmons
 Bedding Co. v. Sealy Tech. LLC, No. 2018-003420,
 2018 WL 2933452 (P.T.A.B. June 1, 2018) (“Decision II”);
 Simmons Bedding Co. v. Sealy Tech. LLC, No. 2018-
 003420, 2019 WL 1489533 (P.T.A.B. Mar. 29, 2019) (“Deci-
 sion on Rehearing”). For the reasons below, we affirm.
                                I
      The ’531 patent, entitled “Euro-top Mattress Design,”
 contains a single claim that recites “[t]he ornamental de-
 signs for a Euro-top mattress design, as shown and de-
 scribed.” ’531 patent claim 1. The ’531 patent includes
 10 figures. Figure 1, shown below, is a perspective view of
 a first embodiment of the Euro-top mattress design.




 ’531 patent Figure 1.
Case: 19-1874   Document: 57     Page: 3    Filed: 08/26/2020




 SEALY TECHNOLOGY, LLC   v. SSB MANUFACTURING COMPANY      3



     In February 2011, SSB Manufacturing Company
 (“Simmons”) sought inter partes reexamination of the ’531
 patent. Upon granting reexamination, the examiner
 agreed that Simmons presented newly found prior art.
 Nevertheless, the examiner declined to adopt any of Sim-
 mons’s requested anticipation and obviousness rejections.
 Simmons appealed to the Board.
     The Board adopted the examiner’s description of the
 claimed design and provided that the design contains six
 elements:
    1. The mattress has a thick, straight-sided pillow
       top layer. The pillow top layer has a flat top
       surface with piping along the top edge.
    2. The proportion of the pillow top layer is approx-
       imately 1/3rd the thickness of the mattress
       layer.
    3. The pillow top is attached to the mattress with
       a shared piping along the bottom of the pillow
       top layer and the top of the mattress.
    4. There are eight flat vertical handles, distrib-
       uted two on each side and two on each end
       which are located between the top and bottom
       piping of the mattress.
    5. The horizontal piping along the edges of the top
       and bottom of the mattress and along the top
       flat surface of the pillow top layer has a con-
       trasting appearance.
    6. The [eight] flat vertical handles each have con-
       trasting sides or edges running vertically with
       the length of the handles.
 Decision I, 2015 WL 1481100, at *2.
    The Board also entered new grounds of rejection based
 on obviousness.    Sealy thereafter elected to reopen
Case: 19-1874     Document: 57      Page: 4    Filed: 08/26/2020




 4    SEALY TECHNOLOGY, LLC    v. SSB MANUFACTURING COMPANY



 prosecution and presented declaration testimony to the ex-
 aminer. Notwithstanding the additional evidence Sealy
 presented, the examiner adopted the Board’s new grounds
 of rejection. Sealy then appealed to the Board. The Board
 affirmed the examiner’s determination that the additional
 evidence Sealy submitted did not overcome the new
 grounds of rejection stated in the Board’s previous decision.
 Sealy then requested rehearing, which the Board denied.
     After having its rehearing request denied, Sealy ap-
 pealed to this court. We have jurisdiction under 28 U.S.C.
 § 1295(a)(4)(A).
                               II
     Sealy first challenges the Board’s construction of the
 claimed contrast. The Board determined that “the only
 contrast necessary is one of differing appearance from the
 rest of the mattress.” Decision I, 2015 WL 1481100, at *3.
 Sealy contends that the Board’s view on contrast is too
 broad and effectively reads out any contrast from the
 claimed design. Sealy proposes that the proper interpreta-
 tion of contrast, as invoked in the figures of the ’531 patent,
 requires “contrasting value and/or color.” Appellant’s
 Br. 23. According to Sealy, such contrast would require
 there to be “something that causes the edge to stand out or
 to be strikingly different and distinct from the rest of the
 design to be considered in contrast.” Id. at 25.
     During an inter partes reexamination proceeding, the
 Board applies the broadest reasonable construction when
 interpreting the meaning and scope of a claim. In re Bond,
 910 F.2d 831, 833 (Fed. Cir. 1990). We review the Board’s
 construction “based on intrinsic evidence de novo and its
 factual findings based on extrinsic evidence for substantial
 evidence.” HTC Corp. v. Cellular Commc’ns Equip., LLC,
 877 F.3d 1361, 1367 (Fed. Cir. 2017).
     We agree with the Board’s interpretation regarding the
 level of contrast claimed. First, the ’531 patent does not
Case: 19-1874    Document: 57      Page: 5    Filed: 08/26/2020




 SEALY TECHNOLOGY, LLC   v. SSB MANUFACTURING COMPANY       5



 provide any textual description regarding the contrast in
 the ’531 patent. Instead, Sealy’s argument regarding the
 degree of claimed contrast is based on how Sealy contends
 contrast would “have been understood by designers of ordi-
 nary skill in the mattress design art.” Appellant’s Br. 25–
 26. To support its position, Sealy relies on the Manual of
 Patent Examining Procedure (“MPEP”) § 1503.02(II), the
 declaration of Mr. Robert Anders, and several dictionary
 definitions of “contrast.”     Sealy, noting that MPEP
 § 1503.02(II) provides that contrast may be shown using
 line shading and stippling, argues that “a designer of ordi-
 nary skill in the art would understand that [the] claimed
 design includes contrast through the use of stippling and
 surface line shading.” Reply Br. 11.
     The question, however, is not whether line shading and
 stippling indicates contrast, but rather, whether it indi-
 cates contrast only to the degree Sealy prefers—e.g., “strik-
 ingly different.” The very MPEP section Sealy relies on
 indicates that it does not. MPEP § 1503.02(II) provides
 that the claim will “broadly cover contrasting surfaces un-
 limited by colors,” and that the “claim would not be limited
 to specific material.” Accordingly, § 1503.02(II) does not
 limit the level of contrast to the particular degree that
 Sealy urges.
     To argue that the level of contrast should be limited to
 a particular degree, Sealy relies on Mr. Anders’s declara-
 tion and dictionary definitions. 1 The examiner, however,
 determined that Mr. Anders’s declaration (along with the
 new arguments Sealy advanced following the Board’s new
 grounds of rejection) did not demonstrate that the ’531 pa-
 tent exhibited the level of contrast Sealy was urging.


     1    As Simmons points out, the examiner during a
 reexamination proceeding of a related patent determined
 that Mr. Anders is “not a mattress designer of ordinary
 skill.” Appellee’s Br. 25 (citing J.A. 2746).
Case: 19-1874    Document: 57       Page: 6   Filed: 08/26/2020




 6    SEALY TECHNOLOGY, LLC   v. SSB MANUFACTURING COMPANY



 Rather, the examiner determined that the ’531 patent
 “does not indicate a significant level or degree of contrast”
 and does not “establish that the degree of contrast between
 the piping and mattress is any different than the range of
 contrast available in the cited prior art.” J.A. 2496–97.
 The Board agreed with examiner that Sealy’s submissions
 did not overcome the new grounds of rejection. Decision II,
 2018 WL 2933452, at *3. With respect to the dictionary
 definitions, the Board on appeal pointed out that the defi-
 nitions were not presented to the examiner and that there-
 fore arguments regarding the dictionaries were improper.
 The Board further found that, even if it were to consider
 those definitions, they would not alter the Board’s conclu-
 sion. According to the Board, Sealy’s reliance on dictionary
 definitions to redefine the term contrast “so as to narrow
 the construction of the drawings themselves” was mis-
 placed. Id. at *2.
      In light of the above, we agree with the Board’s inter-
 pretation of contrast as it pertains to the ’531 patent—that
 the only contrast required is one of differing appearance,
 which may be achieved by such means as “contrasting fab-
 ric, contrasting color, contrasting pattern, and contrasting
 texture,” id. at *2. Neither the ’531 patent nor the drawing
 convention that Sealy claims to have invoked limits the
 level of contrast to the particular degree Sealy urges. We
 do not find that the examiner or the Board erred in their
 treatment of Mr. Anders’s declaration or the dictionary def-
 initions. See Arthrex, Inc. v. Smith & Nephew, Inc.,
 935 F.3d 1319, 1330–31 (Fed. Cir. 2019) (affirming Board’s
 claim construction notwithstanding patent owner’s citation
 to “dictionaries that may support a narrower interpreta-
 tion”).
                              III
     Sealy also challenges the Board’s obviousness determi-
 nations. Specifically, Sealy challenges the Board’s factual
 findings regarding whether the prior art constitutes proper
Case: 19-1874      Document: 57      Page: 7     Filed: 08/26/2020




 SEALY TECHNOLOGY, LLC     v. SSB MANUFACTURING COMPANY          7



 primary references and the Board’s evaluation of Sealy’s
 purported secondary considerations of non-obviousness.
 As Simmons points out, Sealy does not challenge the
 Board’s “combination of references nor the Board’s single-
 reference obviousness findings.” Appellee’s Br. 57.
                                 A
      “For design patents, the ultimate inquiry for obvious-
 ness is whether the claimed design would have been obvi-
 ous to a designer of ordinary skill who designs articles of
 the type involved.” Spigen Korea Co. v. Ultraproof, Inc.,
 955 F.3d 1379, 1383 (Fed. Cir. 2020) (internal quotation
 marks omitted). Obviousness is a question of law based on
 underlying factual questions. MRC Innovations, Inc. v.
 Hunter Mfg., LLP, 747 F.3d 1326, 1331 (Fed. Cir. 2014).
 Such factual inquiries include “(1) the scope and content of
 the prior art; (2) the level of ordinary skill in the art; (3) the
 differences between the claimed invention and the prior
 art; and (4) objective evidence of non-obviousness.” Id. (cit-
 ing Graham v. John Deere Co., 383 U.S. 1, 17 (1966)).
     We review the Board’s legal determinations de novo
 and its factual findings for substantial evidence. Campbell
 Soup Co. v. Gamon Plus, Inc., 939 F.3d 1335, 1339 (Fed.
 Cir. 2019). Substantial evidence “means such relevant ev-
 idence as a reasonable mind might accept as adequate to
 support a conclusion.” Consol. Edison Co. v. NLRB, 305
 U.S. 197, 229 (1938). “Where two different conclusions
 may be warranted based on the evidence of record, the
 Board’s decision to favor one conclusion over the other is
 the type of decision that must be sustained by this court as
 supported by substantial evidence.” IXI IP, LLC v. Sam-
 sung Elecs. Co., 903 F.3d 1257, 1262 (Fed. Cir. 2018) (quot-
 ing In re Bayer Aktiengesellschaft, 488 F.3d 960, 970 (Fed.
 Cir. 2007)).
Case: 19-1874      Document: 57      Page: 8   Filed: 08/26/2020




 8       SEALY TECHNOLOGY, LLC   v. SSB MANUFACTURING COMPANY



                                 B
                                 1
     The obviousness analysis for design patents requires
 that there be a prior art design that qualifies as a primary
 reference. Spigen, 955 F.3d at 1383, 1385. Whether a
 prior art design qualifies as a primary reference depends
 on whether the prior art reference “creates ‘basically the
 same’ visual impression as the claimed design.” Id.
 (cleaned up). The determination of whether a prior art de-
 sign qualifies as a primary reference is a factual issue. Id.
     The Board determined that Aireloom Heritage, pic-
 tured below, met all six of the claim design elements and
 disclosed “basically the same” design as the claimed design.
 Sealy contends that Aireloom Heritage creates “an entirely
 different overall visual impression,” and is therefore not a
 proper primary reference, because it lacks the requisite
 contrast and because the red blanket obstructs a view of
 one of the handles. 2 Appellant’s Br. 44–45.




 Appellant’s Br. 10.




     2  Sealy does not challenge the Board’s finding re-
 garding the other elements of the claimed design.
Case: 19-1874    Document: 57     Page: 9    Filed: 08/26/2020




 SEALY TECHNOLOGY, LLC   v. SSB MANUFACTURING COMPANY      9



     As to contrast, Sealy contends that Aireloom Heritage
 is a monochromatic mattress that lacks the requisite con-
 trast to create the same visual impression as the claimed
 design. This argument, however, depends on us adopting
 Sealy’s proposed interpretation of contrast. See Appel-
 lant’s Br. 39. As discussed, however, we agree with the
 Board’s interpretation of contrast. With this interpretation
 in mind, we determine that substantial evidence supports
 the Board’s finding of the requisite contrast. See Deci-
 sion I, 2015 WL 1481100, at *3 (“[E]ach of the aforemen-
 tioned five Exhibits includes contrasting edging/piping of
 both the mattress and handles as the edging/piping can be
 easily distinguished from the rest of the mattress. . . .”);
 J.A. 2496 (examiner finding that “all piping . . . appear[s]
 to have at least some difference in appearance in compari-
 son to the mattress”).
      The Board also determined that, although only one
 vantage point is shown of the Aireloom Heritage mattress
 and that a blanket covered a portion of the mattress, the
 image of the Aireloom Heritage mattress still depicted
 eight handles. This finding is supported by the “unrebut-
 ted evidence in the form of an Expert Report of Ed Scott,”
 which provided that if there were handles on one side of the
 mattress, a designer of ordinary skill in the art would un-
 derstand there to be handles with the same design, place-
 ment, and proportion, on the opposite side. Decision I,
 2015 WL 1481100, at *2 (citing J.A. 1140–41); see also
 J.A 1136. Further, the examiner found that a designer of
 ordinary skill in the art would have understood that there
 is a handle under the red blanket, J.A. 852 (noting that “4
 vertical handles are shown”), which the Board agreed with,
 Decision I, 2015 WL 1481100, at *3.
    Accordingly, we determine that substantial evidence
 supports the Board’s determination that Aireloom
Case: 19-1874       Document: 57      Page: 10   Filed: 08/26/2020




 10       SEALY TECHNOLOGY, LLC   v. SSB MANUFACTURING COMPANY



 Heritage discloses “basically the same” design as the
 claimed design, and therefore constitutes a primary refer-
 ence. 3
                                  2
     Sealy also challenges the Board’s findings regarding
 Sealy’s purported secondary considerations. Specifically,
 Sealy contends that the Board failed to consider the alleged
 “copying” of the claimed design.
     Sealy’s “copying” argument during the reexamination
 proceeding was based mainly on the fact that Sealy’s mat-
 tress designs were on the market for over a year before
 Simmons introduced its alleged copycat products. See Ap-
 pellant’s Br. 55–57 (citing J.A. 2370–72). The Board, in its
 decision on rehearing, stated that it “did not overlook evi-
 dence of copying,” but instead “agreed with the examiner’s
 general determination as to secondary considerations,”
 which included “acknowledging [Sealy’s] assertions as to
 copying.” Decision on Rehearing, 2019 WL 1489533, at *2.
 Indeed, the examiner’s general determination noted that
 Sealy presented argument regarding alleged “copying,”
 among other secondary considerations. J.A. 2498. The ex-
 aminer then found Sealy’s secondary considerations to be
 unpersuasive and to not outweigh the strong evidence of
 obviousness presented in the Board’s new grounds of rejec-
 tion. J.A. 2498–99 (“the strong evidence of obviousness
 presented in the new grounds of rejection by the Board out-
 weighs the secondary considerations”); see also W. Union



      3   Because we determine that substantial evidence
 supports the Board’s finding that Aireloom Heritage, a ref-
 erence the Board did not combine with any other prior art
 to disclose the claimed design, see Appellee’s Br. 54 n.10, is
 a proper primary reference, we find it unnecessary to con-
 sider Sealy’s challenges to the other four references that
 the Board determined were primary references.
Case: 19-1874    Document: 57      Page: 11    Filed: 08/26/2020




 SEALY TECHNOLOGY, LLC   v. SSB MANUFACTURING COMPANY       11



 Co. v. MoneyGram Payment Sys., Inc., 626 F.3d 1361, 1373
 (Fed. Cir. 2010) (“[W]eak secondary considerations gener-
 ally do not overcome a strong prima facie case of obvious-
 ness.”).    While a more comprehensive discussion of
 “copying” would be preferred, given the circumstances
 here—including the appropriate interpretation of “con-
 trast,” the analysis and application of the prior art, and the
 examiner’s and Board’s more detailed discussion of other
 secondary considerations—we disagree that the compara-
 tively limited discussion of “copying” alone constitutes a
 sufficient basis to disturb the Board’s overall determina-
 tion of obviousness. See MySpace, Inc. v. GraphOn Corp.,
 672 F.3d 1250, 1263–64 (Fed. Cir. 2012) (finding no error
 in a district court’s failing to explicitly mention secondary
 considerations “when the record establishes that the evi-
 dence was properly before and considered by the court”).
                              IV
     Because we affirm the Board’s obviousness determina-
 tion over the Aireloom Heritage reference, we decline to
 consider Sealy’s challenges to the other four references.
 We have considered Sealy’s remaining arguments and find
 them unpersuasive. For the foregoing reasons, we affirm
 the Board.
                         AFFIRMED
