  United States Court of Appeals
      for the Federal Circuit
                   ______________________

                      ULTRATEC, INC.,
                         Appellant

                                  v.

                   CAPTIONCALL, LLC,
                        Appellee

JOSEPH MATAL, PERFORMING THE FUNCTIONS
  & DUTIES OF THE UNDER SECRETARY OF
 COMMERCE FOR INTELLECTUAL PROPERTY
 AND DIRECTOR, U.S. PATENT & TRADEMARK
         OFFICE, UNITED STATES,
                 Intervenors
           ______________________

     2016-1706, 2016-1707, 2016-1710, 2016-1712
              ______________________

   Appeals from the United States Patent and Trade-
mark Office, Patent Trial and Appeal Board in Nos.
IPR2013-00540,     IPR2013-00541,    IPR2013-00544,
IPR2013-00545.

      ------------------------------------------------------------------

                      ULTRATEC, INC.,
                         Appellant

                                  v.
2                             ULTRATEC, INC.      v. CAPTIONCALL, LLC



                   CAPTIONCALL, LLC,
                        Appellee

JOSEPH MATAL, PERFORMING THE FUNCTIONS
  & DUTIES OF THE UNDER SECRETARY OF
 COMMERCE FOR INTELLECTUAL PROPERTY
 AND DIRECTOR, U.S. PATENT & TRADEMARK
         OFFICE, UNITED STATES,
                  Intervenors
            ______________________

             2016-1708, 2016-1709, 2016-1715
                 ______________________

   Appeals from the United States Patent and Trade-
mark Office, Patent Trial and Appeal Board in Nos.
IPR2013-00542, IPR2013-00543, IPR2013-00550.

      ------------------------------------------------------------------

                      ULTRATEC, INC.,
                         Appellant

                                  v.

                   CAPTIONCALL, LLC,
                        Appellee

JOSEPH MATAL, PERFORMING THE FUNCTIONS
  & DUTIES OF THE UNDER SECRETARY OF
 COMMERCE FOR INTELLECTUAL PROPERTY
 AND DIRECTOR, U.S. PATENT & TRADEMARK
         OFFICE, UNITED STATES,
                 Intervenors
           ______________________

                    2016-1713, 2016-2366
                   ______________________
ULTRATEC, INC.   v. CAPTIONCALL, LLC                 3




   Appeals from the United States Patent and Trade-
mark Office, Patent Trial and Appeal Board in Nos.
IPR2013-00549, IPR2014-00780.
                ______________________

                  Decided: August 28, 2017
                   ______________________

    KRISTIN GRAHAM NOEL, Quarles & Brady, LLP, Madi-
son, WI, argued for appellant. Also represented by
ANTHONY ALLEN TOMASELLI, MATTHEW J. DUCHEMIN,
STEPHEN J. GARDNER, MARTHA JAHN SNYDER; EDWARD
KING POOR, Chicago, IL; MICHAEL A. JASKOLSKI, Milwau-
kee, WI; NIKIA L. GRAY, Washington, DC; MICHAEL J.
CURLEY, Tucson, AZ.

    PRATIK A. SHAH, Akin, Gump, Strauss, Hauer & Feld,
LLP, Washington, DC, argued for appellee. Also repre-
sented by ZE-WEN JULIUS CHEN, RACHEL J. ELSBY;
MICHAEL P. KAHN, CAITLIN ELIZABETH OLWELL, New York,
NY.

    FARHEENA YASMEEN RASHEED, Office of the Solicitor,
United States Patent and Trademark Office, Alexandria,
VA, argued for intervenor Joseph Matal. Also represent-
ed by NATHAN K. KELLEY, THOMAS W. KRAUSE, JEREMIAH
HELM, SCOTT WEIDENFELLER.

     MARK R. FREEMAN, Appellate Staff, Civil Division,
United States Department of Justice, Washington, DC,
for intervenor United States. Also represented by SARAH
CARROLL.
                 ______________________

   Before NEWMAN, LINN, and MOORE, Circuit Judges.
MOORE, Circuit Judge.
4                        ULTRATEC, INC.   v. CAPTIONCALL, LLC



    The present appeals arise from a series of inter partes
reviews (“IPRs”) between Ultratec, Inc. (“Ultratec”) and
CaptionCall, LLC (“CaptionCall”). Ultratec owns U.S.
Patent Nos. 5,909,482 (“the ’482 patent”), 6,233,314 (“the
’314 patent”), 6,594,346 (“the ’346 patent”), 6,603,835
(“the ’835 patent”), 7,003,082 (“the ’082 patent”),
7,319,740 (“the ’740 patent”), 7,555,104 (“the ’104 pa-
tent”), and 8,213,578 (“the ’578 patent”). The patents
disclose and claim systems for assisting deaf or hard-of-
hearing users to make phone calls. CaptionCall peti-
tioned for IPR of certain claims of Ultratec’s patents. The
Patent Trial and Appeal Board (“the Board”) held that all
challenged claims were either anticipated or would have
been obvious in light of a variety of prior art references.
Ultratec appealed to our court. The United States Patent
and Trademark Office and the Department of Justice
(collectively, “the PTO”) intervened to defend the Board’s
decisions. Because the Board failed to consider material
evidence and failed to explain its decisions to exclude the
evidence, we vacate and remand.
                      BACKGROUND
    Ultratec and CaptionCall are currently litigating in
both district court and before the Board. Ultratec sued
CaptionCall and its parent company for infringement in
the Western District of Wisconsin. The case proceeded to
trial, where the jury found the patents valid and infringed
and awarded damages of $44.1 million. Five months after
the verdict, the Board issued final written decisions
holding all challenged claims of Ultratec’s patents were
either anticipated or would have been obvious. The
district court subsequently stayed all post-judgment
proceedings pending final resolution of the IPRs.
   CaptionCall retained the same invalidity expert—Mr.
Benedict Occhiogrosso—in the district court litigation and
the IPRs. In some instances, Mr. Occhiogrosso testified
about the same issues and references in both proceedings.
ULTRATEC, INC.   v. CAPTIONCALL, LLC                     5



Ultratec sought to introduce the trial testimony into the
IPRs, alleging that Mr. Occhiogrosso’s trial testimony
conflicted with written declarations he made in the IPRs.
   Ultratec moved to supplement the record with the in-
consistent Occhiogrosso trial testimony. Because Ultratec
had not first requested authorization to file the motion
with the inconsistent testimony, the Board expunged the
motion from the record. PTO Br. at 10 n.8. The Board’s
regulations require that a party seeking to introduce
supplemental evidence more than one month after insti-
tution first request authorization to file a motion to
submit the evidence. 37 C.F.R. § 42.123(b). As the PTO
explained to Ultratec, with regard to its request to file a
motion to supplement the record, “[n]o evidence is permit-
ted to be filed,” and the briefing “must not include a
discussion of the contents or types of the particular docu-
ments sought to be entered.” PTO Br. at 10 n.8. On
October 30, 2014, within a week of the jury trial, Ultratec
requested authorization to file a motion to submit por-
tions of Mr. Occhiogrosso’s trial testimony to the Board.
Ultratec alleged that Mr. Occhiogrosso’s trial testimony
addressing a prior art reference was inconsistent with his
IPR declarations on that same point. 1 On November 4,
2014, the Board held a conference call to consider Ul-
tratec’s request for authorization to file a motion to sup-
plement the IPR record with Mr. Occhiogrosso’s trial
testimony. The Board did not review the testimony when
deciding whether it could be admitted. J.A. 9005; see PTO



   1     See J.A. 6818 (“For example, the type of testimony
Patent Owners were proffering included Mr. Occhiogrosso
testifying generally in agreement with Patent Owner’s
points above that traditional VCO is a one-line arrange-
ment, and that there are differences between the embod-
iments in Sections 4(a), 4(b), and 4(c) of McLaughlin.”).
6                        ULTRATEC, INC.   v. CAPTIONCALL, LLC



Br. 10 n.8. It denied Ultratec’s request during the call
and indicated a written order would follow. The Board
never issued any such order. On November 19, 2014, two
weeks after the conference call, the Board conducted a
short oral hearing on the Ultratec patents. 2
   The Board issued final written decisions, holding that
every challenged claim was either anticipated or would
have been obvious. These final written decisions rely
heavily on the Board’s belief that Mr. Occhiogrosso was a
credible witness. See, e.g., J.A. 11,206 (“It is within our
discretion to assign the appropriate weight to the testi-
mony offered by Mr. Occhiogrosso.”). The Board cited Mr.
Occhiogrosso’s testimony over thirty times to support its
findings, including at least once for each of the eight
patents on appeal. 3 In some instances, the Board explicit-



    2    The PTO at times refers to the IPR proceedings as
a “trial.” PTO Br. 5. Very seldom do IPR proceedings
have the hallmarks of what is typically thought of as a
trial. See Joanna Shepherd, Disrupting the Balance: The
Conflict Between Hatch-Waxman and Inter Partes Review,
6 NYU J. INTELL. PROP. & ENT. L. 14, 37 (2016) (“In con-
trast to the expansive discovery and witness testimony
that is common in district court litigation, discovery is
significantly restricted and live testimony is rarely al-
lowed in IPR proceedings.”); Eric Cohen, A Primer on
Inter Partes Review, Covered Business Method Review,
and Post-Grant Review Before the Patent Trial and Appeal
Board, 24 FED. CIR. B.J. 1, 5 n.40 (2014) (noting that in
the first two years of IPRs, the Board allowed live testi-
mony once). In this case, the IPR proceeding itself was
limited to a brief argument by the lawyers for each side,
and there was no live testimony by any witness.
    3    See, e.g., -1706 appeal J.A. 27, 49, 53 (addressing
the ’314 patent); J.A. 3644, 3648, 3655, 3660, 3664 (ad-
ULTRATEC, INC.   v. CAPTIONCALL, LLC                      7



ly found Mr. Occhiogrosso more credible than Ultratec’s
expert. See J.A. 23 (“We credit the testimony of Mr.
Occhiogrosso over that of Mr. Steel on this issue . . . .”);
J.A. 3660 (“Weighing Mr. Occhiogrosso’s testimony
against Mr. Ludwick’s testimony, we credit Mr. Occhi-
ogrosso’s testimony . . . .”); J.A. 7403 (“On this point,
based on our review of McLaughlin, we credit the testi-
mony of Petitioner’s declarant, Mr. Occhiogrosso, over
that of Patent Owner’s declarant, Mr. Ludwick.”). In
other instances, the Board found Mr. Occhiogrosso credi-
ble on the very issue Ultratec alleges he contradicted at
trial. See J.A. 6383 (“We are persuaded by Mr. Occhi-
ogrosso’s testimony that a person of ordinary skill in the
art would consider McLaughlin to be disclosing a device
capable of all of the HCO/VCO features described there-
in.”); see also J.A. 23, 27, 7403.
   Ultratec moved for reconsideration on a variety of
grounds, including that the Board failed to consider Mr.
Occhiogrosso’s trial testimony and failed to explain its
decision to exclude the new evidence. See J.A. 6818–20.
The Board denied the motion to reconsider. It reasoned:
   On November 4, 2014, after discovery and briefing
   were complete and a month before oral hearing,
   we held a conference call in which we denied Pa-


dressing the ’482 patent); J.A. 7393, 7395, 7403, 7405
(addressing the ’578 patent); J.A. 7419, 7420, 7421 (ad-
dressing the ’578 patent on rehearing); J.A. 11,195,
11,205, 11,206 (addressing the ’346 patent); -1708 appeal
J.A. 23, 27 (addressing the ’740 patent); J.A. 38, 40 (ad-
dressing the ’740 patent on rehearing); J.A. 3224 (ad-
dressing the ’104 patent); J.A. 3237, 3239 (addressing the
’104 patent on rehearing); J.A. 6383 (addressing the ’082
patent); -1713 appeal J.A. 23, 24, 3262 (addressing the
’835 patent).
8                        ULTRATEC, INC.   v. CAPTIONCALL, LLC



    tent Owner’s request for authorization for a late
    submission of additional evidence. See 37 C.F.R.
    § 42.20(b) (“A motion will not be entered without
    Board authorization”); see also 37 C.F.R.
    § 42.123(b) (explaining that the late submission of
    supplemental information must be in the interests
    of justice). Patent Owner argues that the record
    is incomplete because we did not issue an order
    denying its motion. Req. Reh’g 13–14. Patent
    Owner’s [sic] mischaracterizes the events in this
    proceeding because no such motion was denied;
    we denied Patent Owner’s request for authoriza-
    tion to submit evidence and, as such, no order
    denying its motion was necessary. To the extent
    Patent Owner wishes its denial of authorization to
    file late evidence to be further memorialized, this
    paper serves such purpose.
J.A. 6394–95 (emphasis in original).
    Ultratec filed a motion to supplement the appellate
record, requesting that the Board make part of the record
Ultratec’s request for authorization to file a motion to
supplement the record with Mr. Occhiogrosso’s trial
testimony and the Board’s denial of that request.
J.A. 9002–03. The Board held that “the records would be
adequately supplemented” by adding only two documents:
Ultratec’s motion for rehearing of the final written deci-
sion, and the Board’s denial of that motion. J.A. 9003.
Ultratec then filed a second motion to supplement the
appellate record. This time, Ultratec requested the Board
include Ultratec’s October 30, 2014 email to the Board
requesting a conference call to address its request for
authorization to file a motion. The Board denied the
motion. It explained the “emails requesting conference
calls are intended to be administrative in nature; it is
improper for substantive arguments to be made in emails
requesting conference calls.” J.A. 9046 n.3.
ULTRATEC, INC.   v. CAPTIONCALL, LLC                       9



   Ultratec appealed to our court. The PTO intervened
to defend the Board’s decision. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(4)(A).
                         DISCUSSION
    We review the Board’s decision of how it manages its
permissive rules of trial proceedings for abuse of discre-
tion. Redline Detection, LLC v. Star Envirotech, Inc., 811
F.3d 435, 442 (Fed. Cir. 2015). The Board abuses its
discretion if the decision: (1) is clearly unreasonable,
arbitrary, or fanciful; (2) is based on an erroneous conclu-
sion of law; (3) rests on clearly erroneous fact findings; or
(4) involves a record that contains no evidence on which
the Board could rationally base its decision. Id. (quoting
Abrutyn v. Giovanniello, 15 F.3d 1048, 1050–51 (Fed. Cir.
1994)).
   Congress gave the PTO authority to “prescribe regula-
tions establishing procedures for the submission of sup-
plemental information after the petition is filed.” 35
U.S.C. § 316(a)(3). Under the PTO’s regulations, a party
seeking to submit supplemental information more than
one month after the date an IPR is instituted must re-
quest authorization to file a motion to submit the infor-
mation. 37 C.F.R. § 42.123(b). The request to submit new
information must show: (1) why the supplemental infor-
mation reasonably could not have been obtained earlier,
and (2) that consideration of the supplemental infor-
mation would be in the interests of justice. Id. The PTO
considers the interests of justice as slightly higher than
good cause:
    Good cause and interests-of-justice are closely re-
    lated standards, but the interests-of-justice
    standard is slightly higher than good cause.
    While a good cause standard requires a party to
    show a specific factual reason to justify the needed
    discovery, under the interests-of-justice standard,
    the Board would look at all relevant factors. Spe-
10                          ULTRATEC, INC.   v. CAPTIONCALL, LLC



      cifically, to show good cause, a party would be re-
      quired to make a particular and specific demon-
      stration of fact. Under the interests-of-justice
      standard, the moving party would also be required
      to show that it was fully diligent in seeking dis-
      covery and that there is no undue prejudice to the
      non-moving party.
77 Fed. Reg. 48,719 (Aug. 14, 2012). The Board’s Patent
Trial Practice Guide explains that when a party desires to
request authorization to file a motion, it should institute a
conference call with the Board. 77 Fed. Reg. 48,762–63
(Aug. 14, 2012). The Guide explains that:
      Typically, the Board will decide procedural issues
      raised in a conference call during the call itself or
      shortly thereafter, thereby avoiding the need for
      additional briefing. The Board has found that this
      practice simplifies a proceeding by focusing the is-
      sues early, reducing costs and efforts associated
      with motions that are beyond the scope of the pro-
      ceeding.
Id.
    This record affords but one reasonable conclusion: Ul-
tratec satisfied both of § 42.123(b)’s requirements for
allowing Ultratec to file a motion to admit Mr. Occhi-
ogrosso’s trial testimony. First, the evidence could not
have been obtained earlier. Ultratec emailed the Board
requesting authorization to file a motion to supplement
the record the week after the jury trial concluded. This is
not evidence that could have been located earlier through
a more diligent or exhaustive search; it did not exist
during the IPR discovery period. The fact that Ultratec
could have, but did not, depose and obtain inconsistent
testimony from Mr. Occhiogrosso during the IPR itself is
not a basis for concluding otherwise. Ultratec argues that
during cross examination at trial in front of the jury Mr.
Occhiogrosso offered testimony that is inconsistent with
ULTRATEC, INC.   v. CAPTIONCALL, LLC                     11



his IPR testimony. That inconsistent testimony did not
exist sooner and thus could not have been proffered to the
Board sooner.
    The Board offers no reasoned basis why it would not
be in the interest of justice to consider sworn inconsistent
testimony on the identical issue. Ultratec sought to offer
recent sworn testimony of the same expert addressing the
same patents, references, and limitations at issue in the
IPRs. A reasonable adjudicator would have wanted to
review this evidence. If Mr. Occhiogrosso gave conflicting
testimony on cross-examination, this would be highly
relevant to both the Board’s analysis of the specific issues
on which he gave inconsistent testimony and to the
Board’s overall view of his credibility. Mr. Occhiogrosso’s
testimony was critical to the Board’s fact findings in this
case, as the opinions’ repeated reliance on it establishes.
Under such circumstances, no reasonable fact finder
would refuse to consider evidence of inconsistent sworn
testimony. Moreover, any such inconsistencies would
likely bear on the overall credibility of the expert.
    Admitting and reviewing Mr. Occhiogrosso’s trial tes-
timony would have placed minimal additional burden on
the Board. Live testimony is rare in IPR hearings, which
typically last only about an hour. See 77 Fed. Reg. at
48,762. The Board—as it did in these IPRs—makes
credibility determinations based only on written declara-
tions. Ultratec sought to introduce more written testimo-
ny. This is the exact type of evidence the Board routinely
relies upon to determine credibility. There would have
been very little administrative burden to reviewing more
on-point testimony from the same expert on the same
exact issues. Had the testimony been inconsistent, a
reasonable fact finder would consider the inconsistencies.
12                       ULTRATEC, INC.   v. CAPTIONCALL, LLC



Had the testimony been consistent, the Board would not
have had to spend any more time on the issue. 4
    A number of problems with the Board’s procedures
contributed to its errors in this case. First, the Board
lacked the information necessary to make a reasoned
decision. According to the Board, the movant cannot
submit for consideration the evidence it seeks to admit
into the record, and its briefing “must not include a dis-
cussion of the contents or types of the particular docu-
ments sought to be entered.” PTO Br. at 10 n.8. In this
case, the Board denied a request to admit evidence with-
out ever seeing the evidence it was denying; it never
reviewed Mr. Occhiogrosso’s testimony because Ultratec
was not allowed to submit that evidence with its request
to file a motion to supplement the record. The Board’s
only exposure to the disputed testimony was the parties’
competing characterizations of it during the conference
call for which there exists no record.



     4  The PTO speculates on appeal that the Board de-
nied the request for authorization because it was too late
in the proceedings to admit new evidence. PTO Br. 19.
Section 42.123(b) expressly contemplates late submission
of supplemental information and articulates the two
factors to be assessed in determining its admissibility. It
thus cannot be the case that the late filing alone pre-
cludes consideration of the evidence. Ultratec requested
to supplement the record three weeks prior to the IPR
hearings. This would normally give the Board sufficient
time to review the supplemental testimony and prepare
any necessary questions for oral argument. Moreover, the
same statute that imposes a one-year deadline for the
Board to make its final determination gives it the ability
to extend the deadline if good cause is shown. See 35
U.S.C. § 316(a)(11).
ULTRATEC, INC.   v. CAPTIONCALL, LLC                     13



    Second, the Board’s procedures allowed it to make sig-
nificant evidentiary decisions without providing an expla-
nation or a reasoned basis for its decisions. See Motor
Vehicle Mfs. Ass’n of U.S. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983) (“[T]he agency must examine
the relevant data and articulate a satisfactory explana-
tion for its action including a rational connection between
the facts found and the choice made.” (internal quotation
marks omitted)).
    Third, the Board’s procedures impede meaningful ap-
pellate review of the agency decision-making. “[W]e will
uphold a decision of less than ideal clarity if the agency’s
path may reasonably be discerned, but we may not supply
a reasoned basis for the agency’s action that the agency
itself has not given.” Rovalma, S.A. v. Bohler-Edelstahl
GmbH & Co., 856 F.3d 1019, 1024 (Fed. Cir. 2017) (inter-
nal quotation marks omitted). “For judicial review to be
meaningfully achieved within these strictures, the agency
tribunal must present a full and reasoned explanation of
its decision.” In re Lee, 277 F.3d 1338, 1342 (Fed. Cir.
2002). The agency does not have unfettered discretion in
these matters, and we cannot affirm agency decision-
making where the agency fails to provide a reasoned basis
for its decision. See SEC v. Chenery Corp., 318 U.S. 80, 94
(1943) (“[T]he orderly functioning of the process of review
requires that the grounds upon which the administrative
agency acted b[e] clearly disclosed and adequately sus-
tained.”); SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)
(“That rule is to the effect that a reviewing court, in
dealing with a determination or judgment which an
administrative agency alone is authorized to make, must
judge the propriety of such action solely by the grounds
invoked by the agency. If those grounds are inadequate
or improper, the court is powerless to affirm the adminis-
trative action by substituting what it considers to be a
more adequate or proper basis.”). There is no Board order
explaining why it denied Ultratec’s request to file a mo-
14                        ULTRATEC, INC.   v. CAPTIONCALL, LLC



tion to supplement the record. Nor is there any Board
explanation capable of review from the conference call. 5
We are also prohibited from viewing Mr. Occhiogrosso’s
testimony because it is not part of the record. In district
court litigation, a party dissatisfied with a ruling exclud-
ing evidence is allowed to make an offer of proof to pre-
serve error. Fed. R. Evid. 103. Parties in IPRs are not
given similar protections. 6 In this case, the PTO forbade
even a “discussion of the contents or types of the particu-
lar documents sought to be entered.” PTO Br. at 10 n.8.
And it refused to permit the record to include Ultratec’s
email requesting authorization to file a motion to supple-
ment the record. Excluding such discussion from the
record contributes to the unreviewability of the Board’s
decision-making.




     5   The PTO indicated that the Board typically utiliz-
es conference calls to address issues such as requests for
extensions or requests to extend page limits. Oral Arg. at
54:45, 1:02:00. We do not address whether the Board can
decide these types of minor procedural issues during
conference calls. We hold that when the Board makes a
substantive evidentiary ruling, it is required to explain its
decision.
    6    During oral argument, CaptionCall argued that
although Mr. Occhiogrosso’s trial testimony was not part
of the IPR record, it is publicly available as part of the
district court record, and therefore we could take judicial
notice of the testimony and determine in the first instance
whether it was consistent with his IPR declarations. Oral
Arg. at 40:30–43:25. Our court does not have authority,
as CaptionCall urges, to review evidence not considered
by the agency and make factual determinations about the
substance of that evidence.
ULTRATEC, INC.   v. CAPTIONCALL, LLC                      15



    CaptionCall and the PTO argue Ultratec bore the re-
sponsibility to memorialize the conference call if it desired
a written record. CaptionCall Br. 28; PTO Br. 25. There
are, however, no statutes, regulations, statements in the
Patent Trial Practice Guide, nor even notes on the PTO’s
website informing parties that they have the right to hire
a stenographer to transcribe conference calls. We find no
burden on the patentee to memorialize agency action or
reasoning. It is the agency that has the obligation to
fulfill its APA duty to provide a “satisfactory explanation
for its action.” See Motor Vehicle Mfs. Ass’n, 463 U.S. at
43.
    The only reason there is any written record of the
dispute is because Ultratec raised the issue in a motion
for rehearing. The Board addressed the issue in its order
denying rehearing, but it did not explain why it denied
the request for authorization. See J.A. 6394–95. The
Board noted that a conference call occurred, but it never
stated what was discussed on the call. J.A. 6394. Nor did
the Board address the substance of Mr. Occhiogrosso’s
trial testimony. Id. And although the Board cited the
interests of justice provision of 37 C.F.R. § 42.123(b), it
never explained why its actions were in the interests of
justice. Id. The Board explained that it was not obligated
to provide an explanation in the first place. The Board
reasoned that “Patent Owner argues that the record is
incomplete because we did not issue an order denying its
motion.     Req. Reh’g 13–14.       Patent Owner’s [sic]
mischaracterizes the events in this proceeding because no
such motion was denied; we denied Patent Owner’s
request for authorization to submit evidence and, as such,
no order denying its motion was necessary.” Id. If the
APA requires the Board to explain a denial of a motion
then it likewise requires the Board to explain the denial
of a request to make a motion. To the extent the Board
views the two-step process it created to file motions as
insulating it from its APA obligations, this is incorrect.
16                         ULTRATEC, INC.   v. CAPTIONCALL, LLC



    The Board abused its discretion when it refused to
admit and consider Mr. Occhiogrosso’s trial testimony and
when it refused to explain its decision. Because the Board
relied on Mr. Occhiogrosso’s credibility in every IPR, we
vacate every decision. See In re Van Os, 844 F.3d 1359,
1362 (Fed. Cir. 2017) (“[W]hen the Board’s action is
potentially lawful but insufficiently or inappropriately
explained, we have consistently vacated and remanded for
further proceedings.” (internal quotation marks omitted)).
On remand, the Board shall admit and consider Mr.
Occhiogrosso’s trial testimony. If the Board finds he gave
inconsistent testimony, the Board shall consider the
impact on the specific patents at issue in the trial testi-
mony as well as on his credibility as a whole.
                          CONCLUSION
   The Board’s final written decisions are vacated and
remanded.
              VACATED AND REMANDED
                            COSTS
     Costs to Ultratec.
