  United States Court of Appeals
      for the Federal Circuit
                ______________________

  HUSKY INJECTION MOLDING SYSTEMS LTD.,
                 Appellant

                           v.

           ATHENA AUTOMATION LTD.,
                  Cross-Appellant
              ______________________

                 2015-1726, 2015-1727
                ______________________

   Appeals from the United States Patent and Trade-
mark Office, Patent Trial and Appeal Board in No.
IPR2013-00290.
               ______________________

              Decided: September 23, 2016
                ______________________

    MATTHEW L. CUTLER, Harness, Dickey & Pierce, PLC,
St. Louis, MO, argued for appellant.

    MARSHALL JOHN SCHMITT, Michael Best & Friedrich,
LLP, Chicago, IL, argued for cross-appellant. Also repre-
sented by GILBERTO EDUARDO ESPINOZA, MARTIN L.
STERN.

    JOSEPH MATAL, Office of the Solicitor, United States
Patent and Trademark Office, Alexandria, VA, argued for
intervenor Michelle K. Lee. Also represented by NATHAN
K. KELLEY, SCOTT WEIDENFELLER.
2                          HUSKY INJECTION MOLDING SYS. v.
                                  ATHENA AUTOMATION LTD.


                  ______________________

    Before LOURIE, PLAGER, and STOLL, Circuit Judges.
    Opinion for the court filed by Circuit Judge LOURIE.
Opinion concurring in part and dissenting in part filed by
                 Circuit Judge PLAGER.
LOURIE, Circuit Judge.
    Husky Injection Molding Systems Ltd. (“Husky”) ap-
peals from the U.S. Patent and Trademark Office Patent
Trial and Appeal Board’s (“the Board”) inter partes review
decision finding claims 1, 4–16, 18, and 20–22 of U.S.
Patent 7,670,536 (“the ’536 patent”) anticipated. Athena
Automation Ltd. v. Husky Injection Molding Sys. Ltd., No.
2013-00290, 2014 WL 5454543, at *23 (P.T.A.B. Oct. 23,
2014) (“Final Written Decision”). Athena Automation Ltd.
(“Athena”) cross-appeals from the Board’s decision finding
claims 2, 3, 17, and 19 of the ’536 patent not anticipated.
Athena Automation Ltd. v. Husky Injection Molding Sys.
Ltd., No. 2013-00290 (P.T.A.B. Feb. 23, 2015) (decision on
rehearing); see Joint App. (“J.A.”) 56–65. For the reasons
that follow, we dismiss Husky’s appeal for lack of jurisdic-
tion; we vacate the Board’s decision on incorporation by
reference and its finding of no anticipation with respect to
claims 2, 3, 17, and 19; and we remand for further consid-
eration of those latter claims.
                       BACKGROUND
    The ’536 patent discloses a molding machine having a
clamp assembly comprising, inter alia, a stationary platen
120, a movable platen 122, tie bars 121, tie bar locks 130
that couple the tie bars to the movable platen, and clamp
actuators 128 that supply a clamping force to the tie bars.
’536 patent col. 8 l. 58–col. 9 l. 46. Figure 2a, reproduced
below, depicts the clamp assembly.
HUSKY INJECTION MOLDING SYS.   v.                         3
ATHENA AUTOMATION LTD.




Id. fig.2a. When the two platens, each attached to a mold
support structure, 124, 126, are brought together, a mold
cavity is created “in which a molded article may be mold-
ed . . . once the extruder 104 injects, under pressure, the
injectable molding material into the mold cavity.” Id. col.
9 ll. 6–10; id. col. 9 ll. 20–24.
    The claims of the ’536 patent specifically recite a lock
and a method for using that lock to couple the tie bars 121
to the movable platen 122. 1 Id. col. 9 ll. 29–31. The lock



   1    Claim 1 represents the product claims, ’536 patent
col. 16 ll. 12–27, and claim 18 represents the method
claims, id. col. 18 ll. 6–17. Both are reproduced below.
   1. A lock of a molding system having a rod and a
   platen, the lock comprising:
       a lock member associated with the rod
       that is movable between a clamped posi-
       tion and a released position by a clamp as-
       sembly; and
       a complementary lock member associated
       with the platen; the lock member and the
4                          HUSKY INJECTION MOLDING SYS. v.
                                  ATHENA AUTOMATION LTD.


has two interlocking components, one associated with the
tie bar (lock member 510) and one with the platen (com-
plementary lock member 512). Id. col. 11 ll. 55–58; id. col.


       complementary lock member cooperatively
       operable to move between a lockable con-
       dition and an unlockable condition; where-
       in
       the complementary lock member is enga-
       gable with the lock member within a rela-
       tively lower flex zone of the platen;
       the relatively lower flex zone of the platen
       being a
       portion of the platen adjacent to the rod
       and having a flex that is lower relative to
       a relatively higher flex zone of the platen
       also adjacent to the rod.
    18. A method of actuating a lock of a molding sys-
    tem having a rod that is movable between a
    clamped position and a released position by a
    clamp assembly and a platen, the method com-
    prising:
       engaging a lock member associated with
       the rod with a complementary lock mem-
       ber associated with the platen at a posi-
       tion located proximate to a relatively
       lower flex zone of the platen;
       the relatively lower flex zone of the platen
       being a
       portion of the platen adjacent to the rod
       and having a flex that is lower relative to
       a relatively higher flex zone of the platen
       also adjacent to the rod.
HUSKY INJECTION MOLDING SYS.   v.                         5
ATHENA AUTOMATION LTD.


11 l. 67–col. 12 l. 3. The complementary lock member 512
comprises a sleeve 230 rotatably mounted to a bore (hole)
in the corner of the movable platen, which receives tie rod
121 and its lock member 510. Id. col. 12 ll. 6–21. The two
lock members engage, and the teeth of each lock member
align, when sleeve 230 is rotated. Id. As shown below,
Figure 5b reflects the unlockable condition, and Figure 6b
reflects the lockable condition.




Id. fig.5b, fig.6b. Once the two lock members engage, the
clamp on the stationary platen applies a clamping force,
locking the two platens together and assembling the mold.
Id. col. 13 ll. 12–21.
    Husky’s former owner and president (“Schad”) is also
a co-inventor of the ’536 patent. In 2007, Schad assigned
the ’536 patent to Husky. Shortly thereafter, Schad sold
Husky to a private equity group, and left to form Athena.
In 2012, Athena filed a petition for inter partes review at
the Board, challenging the patentability of all 22 claims in
the ’536 patent. Athena asserted, inter alia, that various
claims of the ’536 patent were anticipated either by U.S.
6                          HUSKY INJECTION MOLDING SYS. v.
                                  ATHENA AUTOMATION LTD.


Patent Application 2004/0208950 (“Glaesener”) in combi-
nation with its incorporation by reference of U.S. Patent
5,753,153 (“Choi”) (together, “Glaesener/Choi”), or by U.S.
Patent 5,417,913 (“Arend”).
     Husky filed a preliminary response, arguing only that
assignor estoppel barred Athena from filing a petition for
review. The Board rejected that argument and instituted
review. Athena Automation Ltd. v. Husky Injection Mold-
ing Sys. Ltd., No. 2013-00290, 2013 WL 8595976, at *2, *7
(P.T.A.B. Oct. 25, 2013) (“Institution Decision”). It first
reasoned that the equitable doctrine, “a defense to certain
claims of patent infringement,” id. at *7 (quoting Semi-
conductor Energy Lab. Co. v. Nagata, 706 F.3d 1365, 1369
(Fed. Cir. 2013)), does not provide for an exception to the
otherwise broad statutory mandate that “a person who is
not the owner of a patent may file with the Office a peti-
tion to institute an inter partes review of the patent,” 35
U.S.C. § 311. The Board further found a comparison to 17
U.S.C. § 1337(c) instructive, in that Congress provided for
“all legal and equitable defenses” in an ITC investigation,
but not in inter partes review. Institution Decision at *7.
    In 2014, the Board issued its final written decision. It
found that claims 1, 4–16, 18, and 20–22 were anticipated
by Arend, Final Written Decision at *23, and that claims
2, 3, 17, and 19 were not anticipated by Glaesener/Choi,
id. at *16–17. With respect to the latter, the Board de-
clined to address whether two paragraphs in Glaesener
incorporate Choi by reference, 2 instead finding that even



    2   The first relevant paragraph in Glaesener recites:
“The tie-bar nuts can be secured to the rear wall 16 by
any appropriate mechanism, such as the pineapple and
toothed-ring mechanism described in [Choi].” Glaesener
¶ 0035 (emphasis added). The second paragraph recites:
“All cross-referenced patents and application[s] referred
HUSKY INJECTION MOLDING SYS.   v.                           7
ATHENA AUTOMATION LTD.


assuming sufficient incorporation, the reference combina-
tion still fails to teach the recited limitations “in the same
form and order as listed in the claims.” Id. at *16. Nota-
bly, the Board found that Athena failed to explain what
Glaesener incorporates from Choi, much less how Choi’s
clamping device would secure the components of Glaesen-
er’s molding machine. Id. at *17.
    Athena requested rehearing of the final decision, and
the Board granted the request in part. J.A. 64. In doing
so, the Board expressly addressed incorporation by refer-
ence, and found that Athena failed to show that Glaesener
incorporates any portion of Choi for purposes of anticipa-
tion. Specifically, it reasoned that Athena submitted no
evidence or explanation supporting what a skilled artisan
would understand the “pineapple and toothed-ring mech-
anism” in Choi to be, J.A. 60, nor were Choi and Glaesen-
er clear as to what was meant to be incorporated, J.A. 62.
For that reason only, the Board reaffirmed its finding that
Athena failed to prove anticipation of claims 2, 3, 17, and
19. J.A. 63–64.
    Husky timely appealed from the Board’s decision with
respect to claims 1, 4–16, 18, and 20–22; Athena timely
cross-appealed from the Board’s decision with respect to
claims 2, 3, 17, and 19. We have jurisdiction to review the
Board’s final decision under 28 U.S.C. § 1295(a)(4)(A).
                        DISCUSSION
                  I.     HUSKY’S APPEAL
   Husky’s appeal focuses exclusively on whether assign-
or estoppel may bar a party from filing a petition for inter
partes review at the Patent and Trademark Office. Husky
contends that Athena is in privity with Schad, the assign-



to in this specification are hereby incorporated by refer-
ence.” Id. ¶ 0049.
8                           HUSKY INJECTION MOLDING SYS. v.
                                   ATHENA AUTOMATION LTD.


or of the ’536 patent, and, as such, is estopped from chal-
lenging the claims of the ’536 patent. Accordingly, Husky
continues, the Board acted outside of its statutory author-
ity when it instituted review and found claims 1, 4–16, 18,
and 20–22 unpatentable as anticipated. As Husky only
argues that Athena is estopped from seeking inter partes
review, and not that the claims are not anticipated on the
merits, we consider only the estoppel question. For the
reasons that follow, we dismiss Husky’s appeal for lack of
jurisdiction.
                             A
   We begin with necessary context. In 2011, Congress
created the inter partes review process, inter alia, as a
means for the Patent and Trademark Office to efficiently
review issued patents. Sections 311 through 319 carefully
describe the requirements of and mechanism for review.
See 35 U.S.C. §§ 311–319. Of particular importance is
§ 314(d), which provides that “the determination by the
Director whether to institute inter partes review under
this section shall be final and nonappealable.”           Id.
§ 314(d) (emphasis added). Since § 314(d)’s inception, we
have had several opportunities to address whether and to
what extent it limits our ability to review the institution
decision. E.g., Achates Reference Publ’g, Inc. v. Apple Inc.,
803 F.3d 652, 657–58 (Fed. Cir. 2015); In re Cuozzo Speed
Techs., LLC, 793 F.3d 1268, 1273 (Fed. Cir. 2015), aff’d,
Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131 (2016);
In re Procter & Gamble Co., 749 F.3d 1376, 1378 (Fed.
Cir. 2014); In re Dominion Dealer Sols., LLC, 749 F.3d
1379, 1381 (Fed. Cir. 2014); St. Jude Med., Cardiology
Div., Inc. v. Volcano Corp., 749 F.3d 1373, 1375 (Fed. Cir.
2014).
   We first held in St. Jude that § 314(d) bars interlocu-
tory review of a decision to deny inter partes review. 749
F.3d at 1375. In doing so, we characterized § 314(d) as a
“broadly worded bar on appeal,” and reasoned that such a
HUSKY INJECTION MOLDING SYS.    v.                           9
ATHENA AUTOMATION LTD.


result comports with 35 U.S.C. §§ 141(c) and 319, which
only authorize appeals from a final written decision. Id.
at 1375–76; see 35 U.S.C. § 141(c) (“A party to an inter
partes review . . . who is dissatisfied with the final written
decision of the [Board] may appeal the Board’s decision . .
. .”); id. § 319 (“A party dissatisfied with the final written
decision of the [Board] may appeal the decision . . . .”).
    We then held in Cuozzo that § 314(d) precludes review
of the Director’s earlier decision to institute, even after a
final written decision. In Cuozzo, the Director instituted
an inter partes review of certain claims, relying on several
references not cited in the petition with respect to those
claims. See 793 F.3d at 1272 (“Although Garmin’s peti-
tion with respect to claim 17 included the grounds on
which the PTO instituted review, the petition did not list
Evans and Wendt for claim 10 or Wendt for claim 14.”).
Cuozzo challenged the Director’s decision, contending that
the Director may only initiate an inter partes review
proceeding on the grounds “identifie[d] . . . with particu-
larity” in the petition, as set forth in 35 U.S.C. § 312(a)(3).
Id. at 1272–73. We declined to review Cuozzo’s challenge,
noting that § 314(d) broadly “exclude[s] all review of the
decision whether to institute,” and is not just “directed to
precluding review only before a final decision.” Id. at
1273. As we stated, a “declaration that the decision to
institute be ‘final’ cannot reasonably be interpreted as
postponing review until after issuance of a final decision
on patentability.” Id. Such an interpretation would
render § 314(d) superfluous, “given that § 319 and § 141(c)
already limit appeals to appeals from final decisions.” Id.;
see also id. (“Because § 314(d) is unnecessary to limit
interlocutory appeals, it must be read to bar review of all
institution decisions, even after the Board issues a final
decision.”).
   Cuozzo petitioned the Supreme Court to grant certio-
rari, and the Court did so. Following oral argument, the
Court affirmed our decision, concluding that the “text of
10                          HUSKY INJECTION MOLDING SYS. v.
                                   ATHENA AUTOMATION LTD.


the ‘No Appeal’ provision, along with its place in the
overall statutory scheme, its role alongside the Adminis-
trative Procedure Act, the prior interpretation of similar
patent statutes, and Congress’[s] purpose in crafting inter
partes review, all point in favor of precluding review of
the Patent Office’s institution decisions.” 3 Cuozzo Speed
Techs., LLC v. Lee, 136 S. Ct. 2131, 2141 (2016) (“Cuozzo
II”). The Court acknowledged the “strong presumption” in
favor of judicial review, but noted that “‘clear and convinc-
ing’ indications, drawn from ‘specific language,’ ‘specific
legislative history,’ and ‘inferences of intent drawn from
the statutory scheme as a whole’” show that Congress
intended to bar review. Id. at 2140. The Court relied on
two aspects in particular: the language of § 314(d), and
the nature of the legal dispute at issue.
    With respect to the first, the Court noted that § 314(d)
unquestionably provides that the determination whether
to institute inter partes review “shall be final and nonap-
pealable.” That mandate operates with particular force in
view of Congress’s objective in creating the inter partes
review process, “giving the Patent Office significant power
to revisit and revise earlier patent grants,” as well as the
existence of similar provisions in related patent statutes.
Id. at 2139–40 (citing both 35 U.S.C. § 319 and 35 U.S.C.
§ 312 (2006) (repealed) (highlighting the nonreviewability




     3   The Supreme Court issued its decision in Cuozzo
II after briefing and oral argument concluded in this case.
We therefore requested simultaneous, supplemental
briefing from the parties and the Patent and Trademark
Office relating to the impact of the Supreme Court’s
decision on this case. See Husky Injection Molding Sys.
Ltd. v. Athena Automation Ltd., Nos. 2015-1726, -1727,
ECF No. 55 (Fed. Cir. July 18, 2016). Those briefs were
submitted on July 28, 2016. Id. ECF Nos. 58, 61, 62.
HUSKY INJECTION MOLDING SYS.   v.                         11
ATHENA AUTOMATION LTD.


of the determination to initiate inter partes reexamina-
tion) with respect to the latter point).
     With respect to the second, the Court noted that “the
legal dispute at issue [there was] an ordinary dispute
about the application of certain relevant patent statutes
concerning the Patent Office’s decision to institute inter
partes review,” particularly the “related statutory section,
§ 312,” and that the express language of § 314(d) “must, at
the least, forbid an appeal that attacks a ‘determination
. . . whether to institute’ review by raising this kind of
legal question.” Id. at 2139. The Court emphasized that
review is foreclosed “where the grounds for attacking the
decision to institute inter partes review consist of ques-
tions that are closely tied to the application and interpre-
tation of statutes related to the Patent Office’s decision to
initiate inter partes review.” Id. at 2141 (emphasis add-
ed).
    The Court did, however, leave open the possibility that
§ 314(d) may nevertheless allow for review of appeals that
“implicate constitutional questions, that depend on other
less closely related statutes, or that present other ques-
tions of interpretation that reach, in terms of scope and
impact, well beyond ‘this section.’” Id. The Court further
noted that it did not “categorically preclude review” of any
final decision where the agency acted outside of its statu-
tory authority, e.g., “canceling a patent claim for ‘indefi-
niteness under § 112’ in inter partes review.” Id. at 2141–
42; see also 35 U.S.C. § 311(b) (“A petitioner may request
to cancel [a claim] only on a ground that could be raised
under section 102 or 103.”).
    In line with the latter exception, we have similarly de-
termined that we may review a challenge to the institu-
tion decision if it relates to the Board’s ultimate authority
to invalidate a particular patent. That ultimate invalida-
tion authority is purely tied to the patent challenged and
the nature of the review requested; it is not a question of
12                          HUSKY INJECTION MOLDING SYS. v.
                                   ATHENA AUTOMATION LTD.


who petitions for review. Achates, 803 F.3d 652; see Wi-Fi
One, LLC v. Broadcom Corp., 2015-1944, slip op. at 8–9
(Fed. Cir. Sept. 16, 2016) (holding that Achates remains
good law in light of the Supreme Court’s decision in
Cuozzo II, specifically concluding that § 315 is a statute
closely related to the decision whether to institute); Versa-
ta Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306 (Fed.
Cir. 2015), cert. denied, No. 15-1145, 2016 WL 1029054
(U.S. June 27, 2016).
    Indeed, we first established that principle in Versata,
in an analogous covered business method (“CBM”) review
context. See 793 F.3d at 1320. During a CBM review, the
Board may only evaluate and invalidate a CBM patent, as
expressly defined by statute. Id. “If a particular patent is
not a CBM patent, there is no proper pleading that could
be filed to bring it within the [Board]’s § 18 [CBM review]
authority.” Id.; cf. id. at 1322 (distinguishing Cuozzo by
noting that there a proper petition could have cited all the
prior art, “thereby plainly giving the PTAB authority to
invalidate the patent at issue in the IPR”). Accordingly, a
determination whether the challenged patent satisfies the
CBM criteria necessarily relates to the Board’s ultimate
invalidation authority, and we held that we may review
such a determination, even when made during institution.
Id. at 1315, 1319–20; cf. Cuozzo, 793 F.3d at 1273 (“[T]he
IPR statute [does not] expressly limit the Board’s authori-
ty at the final decision stage to the grounds alleged in the
IPR petition.”).
   We then elaborated on that principle in Achates, hold-
ing that procedural limits placed on when certain parties
must file for review do not relate to the Board’s ultimate
authority to invalidate a patent. See Achates, 803 F.3d at
657–59. Specifically, Achates involved the time bar in 35
HUSKY INJECTION MOLDING SYS.    v.                          13
ATHENA AUTOMATION LTD.


U.S.C. § 315(b). 4 Id. at 653. The Patent and Trademark
Office determined that Apple’s petitions for review did not
trigger the time bar and instituted review. Id. at 654. On
appeal, Achates argued that we could review that deter-
mination because it “goes to the Board’s ultimate authori-
ty to invalidate the patents.” Id. at 657. We disagreed.
    In particular, we acknowledged that “compliance with
the time-bar does not itself give the Board the power to
invalidate a patent. Instead, the time-bar [(§ 315(b))] sets
out the procedure for seeking IPR,” id. at 658, in contra-
distinction to the express authorization in CBM review for
the Board to institute review of, and perhaps invalidate, a
CBM patent, cf. Versata, 793 F.3d at 1320–21. At best, a
time bar prevents particular petitioners from challenging
a patent, Achates, 803 F.3d at 657, but that does not affect
the Board’s authority to later invalidate that patent: “The
Board may still invalidate a claim challenged in a time-
barred petition via a[nother] properly-filed petition from
another petitioner.” Id.; accord id. (“Just as the pleading
in Cuozzo could have been sufficient by the inclusion of
the missing prior art reference, . . . the timeliness issue
here could have been avoided if Apple’s petition had been
filed a year earlier or if a petition identical to Apple’s were
filed by another[.]”); cf. Versata, 793 F.3d at 1320 (noting
that no proper pleading “could be filed to bring [the pa-
tent] within the PTAB’s § 18 authority”). Because the
question for review involved who could petition for review
rather than whether the Board could ultimately invalidate
the patent, we held that we lacked jurisdiction to review




    4   35 U.S.C. § 315(b) provides: “An inter partes re-
view may not be instituted if the petition requesting the
proceeding is filed more than 1 year after the date on
which the petitioner . . . is served with a complaint alleg-
ing infringement of the patent.”
14                          HUSKY INJECTION MOLDING SYS. v.
                                   ATHENA AUTOMATION LTD.


the time-bar determination from the institution decision.
See Achates, 803 F.3d at 659.
    The above-discussed cases establish a two-part inquiry
for determining whether we may review a particular
challenge to the decision whether to institute. First, we
must determine whether the challenge at issue is “closely
tied to the application and interpretation of statutes
related to the Patent Office’s decision to initiate inter
partes review,” or if it instead “implicate[s] constitutional
questions,” “depend[s] on other less closely related stat-
utes,” or “present[s] other questions of interpretation that
reach, in terms of scope and impact,” “well beyond ‘this
section.’” Cuozzo II, 136 S. Ct. at 2141 (emphasis added).
If the latter, our authority to review the decision to insti-
tute appears unfettered. But if the former, § 314(d)
forbids our review. One further exception remains, how-
ever. At the second step of the inquiry, we must ask if,
despite the challenge being grounded in a “statute closely
related to that decision to institute,” id. at 2142, it is
nevertheless directed to the Board’s ultimate invalidation
authority with respect to a specific patent, id. at 2141; see
also Versata, 793 F.3d at 1319–20; Achates, 803 F.3d at
657. If so, we may review the challenge.
                             B
    It is with that context in mind that we now turn to the
instant case. As in the cases noted above, Husky’s appeal
challenges the institution decision, specifically the Board’s
determination during the institution phase that assignor
estoppel cannot bar an assignor or his or her privies from
petitioning for inter partes review. According to Husky,
that determination involves “an interpretation issue that
reaches, in terms of scope and impact, well beyond § 314,”
see Appellant’s Suppl. Br. 1, and, moreover, it necessarily
implicates the Board’s invalidation authority with respect
to the ’536 patent, see, e.g., Appellant’s Reply Br. 36–43.
HUSKY INJECTION MOLDING SYS.   v.                        15
ATHENA AUTOMATION LTD.


For those reasons, Husky asserts that we have jurisdic-
tion to review the assignor estoppel determination.
    We are mindful of the otherwise powerful presumption
favoring judicial review of agency determinations, but in
applying the foregoing framework, we conclude that we
lack the authority to review the Board’s determination in
its institution decision that assignor estoppel does not
apply at the Patent and Trademark Office.
   First, we conclude that the question whether assignor
estoppel applies in full force at the Patent and Trademark
Office does not fall into any of the three categories the
Supreme Court specifically mentioned as reviewable.
Nothing about the question implicates a constitutional
concern such as a due process violation, and no party
contends as much. Cuozzo II, 136 S. Ct. at 2141.
    Nor does it “depend on other less closely related stat-
utes.” Id. As an initial matter, the doctrine of assignor
estoppel does not derive from statute. Rather, it is an
equitable doctrine that arose in the patent infringement
context to prohibit an assignor or his or her privies from
stating the patent rights earlier assigned are of no value.
Diamond Sci. Co. v. Ambico, Inc., 848 F.2d 1220 (Fed. Cir.
1988). In Diamond Scientific, we reasoned that the
“implicit representation by the assignor that the patent
rights that he is assigning (presumably for value) are not
worthless” must be honored, id. at 1224, for “[t]o allow the
assignor to make that representation at the time of the
assignment (to his advantage) and later to repudiate it
(again to his advantage) could work an injustice against
the assignee,” id. Thus, the question of assignor estoppel
itself does not “depend on other less closely related stat-
utes.”
   Nevertheless, a determination whether assignor es-
toppel applies at the Patent and Trademark Office in the
inter partes review context necessarily requires an inter-
pretation of 35 U.S.C. § 311(a) (“[A] person who is not the
16                          HUSKY INJECTION MOLDING SYS. v.
                                   ATHENA AUTOMATION LTD.


owner of a patent may file . . . .”). See Institution Decision
at *7 (“Consequently, under the statute, an assignor of a
patent, who is no longer an owner of the patent at the
time of filing, may file a petition requesting inter partes
review. This statute presents a clear expression of Con-
gress’s broad grant of the ability to challenge the patenta-
bility of patents through inter partes review.” (emphasis
added)). We must therefore assess whether § 311 consti-
tutes a “closely related” or an “other less closely related”
statute. See Cuozzo II, 136 S. Ct. at 2141.
   Even though the Supreme Court did not set forth any
specific framework for determining if a statute is “closely
related,” the statutes “closely related” to the decision
whether to institute are necessarily, and at least, those
that define the metes and bounds of the inter partes
review process. And an interpretation of § 311 and its
prescription of “a person who is not the owner of a patent
may file” to either include or foreclose assignor estoppel is
very “closely related” to any decision to initiate inter
partes review.
   Husky focuses on the third exception set forth by the
Supreme Court, arguing that the question of assignor
estoppel is ultimately an “interpretation of an issue that
reaches, in terms of scope and impact, well beyond § 314.”
Appellant’s Suppl. Br. 1. We do not agree. Section 314
describes the threshold determination the Patent and
Trademark Office must make before it can institute a
review; namely, the Director must first determine “that
the information presented in the petition . . . shows that
there is a reasonable likelihood” the petitioner would
prevail on the patentability grounds raised. 35 U.S.C. §
314(a). The scope of the section thus pertains to argu-
ments concerning patentability and the necessary
strength of those arguments before the Director is author-
ized to initiate review. The question of assignor estoppel
implicates those very same concerns; if assignor estoppel
applies, an assignor or his or her privies may not chal-
HUSKY INJECTION MOLDING SYS.   v.                          17
ATHENA AUTOMATION LTD.


lenge the patentability of the patent earlier assigned, and
any petition filed by an assignor or his or her privies falls
far short of the “reasonable likelihood” standard guarding
against improper institution. See Mentor Graphics Corp.
v. Quickturn Design Sys., Inc., 150 F.3d 1374, 1377 (Fed.
Cir. 1998) (“Assignor estoppel prevents a party who
assigns a patent to another from later challenging the
validity of the assigned patent.”). The impact of assignor
estoppel thus cannot be divorced from the very precise
scope of § 314 simply to justify our review. The issue is
not “well beyond this section,” and hence it is beyond our
review.
   Although we conclude that the assignor estoppel ques-
tion is not entitled to review under the three exceptions in
Cuozzo II, we must nevertheless further determine if,
despite the question’s close ties to the decision to insti-
tute, the question relates to the Board’s ultimate invalida-
tion authority. We conclude that it does not.
    As in this case, both Versata and Achates involve stat-
utes “closely related” to the decision to initiate the respec-
tive reviews, as we have defined such statutes here today.
Nevertheless, in Versata, we held that we could review a
determination whether a certain patent met the statutory
definition of a CBM patent because that question neces-
sarily related to the Board’s ultimate authority to invali-
date that patent during a CBM review. 793 F.3d at 1315,
1319–20. As noted above, and in contrast, we elaborated
in Achates that the Board’s invalidation authority derives
from the patent challenged and the type of the review
requested; it is not a question of who petitions for review.
We thus held that a bar preventing particular petitioners
from challenging a patent does not impact the Board’s
invalidation authority, for “[t]he Board may still invali-
date a claim challenged in a time-barred petition via
a[nother] properly-filed petition from another petitioner.”
Achates, 803 F.3d at 657.
18                          HUSKY INJECTION MOLDING SYS. v.
                                   ATHENA AUTOMATION LTD.


    As we have stated, assignor estoppel operates to pre-
vent “one who has assigned the rights to a patent (or [a]
patent application) from later contending that what was
assigned” lacks value. Diamond Sci., 848 F.2d at 1224. It
does not foreclose all challenges to a patent’s validity from
the remainder of the general public. See id. (“The essence
of the principle of fair dealing which binds the assignor of
a patent in a suit by the assignee, even though it turns
out that the patent is invalid or lacks novelty, is that in
this relation the assignor is not part of the general public
but is apart from the general public.” (citation and quota-
tion marks omitted)). To that end, it does not prevent a
tribunal from evaluating the validity of any challenged
claims generally, but rather simply limits the parties that
may ask the tribunal for such an evaluation.
    In that way, assignor estoppel differs from the certain
statutory limits placed on the Board’s authority in a CBM
review. In Versata, the determination in question turned
on the type of patent involved, for the nature of the patent
alone made it subject to “a special [Board] power to inval-
idate.” 793 F.3d at 1321. In contrast, assignor estoppel
“does not itself give the Board the power to invalidate a
patent.” See Achates, 803 F.3d at 658. Rather, it is of a
piece with the procedural limits deemed unreviewable in
Achates, where those limits effectuated the orderly pro-
gress of inter partes review. As we reasoned, a failure to
follow the time bar by one petitioner would not foreclose
all future review by the Board; it would simply prevent a
particular petitioner from challenging the patent’s claims.
Id. at 657. Likewise, that one petitioner may be estopped
from challenging the patent does not foreclose all future
review by the Board of that patent. Indeed, “[t]he fact
that the petition was defective is irrelevant because a
proper petition could have been drafted.” See Cuozzo, 793
F.3d at 1274. Ultimately, any question concerning as-
signor estoppel necessarily implicates who may petition
for review, and, as we have held, such a question falls
HUSKY INJECTION MOLDING SYS.   v.                        19
ATHENA AUTOMATION LTD.


outside of the narrow exceptions to the otherwise broad
ban on our review of the decision whether to institute.
    For the reasons articulated above, we conclude that
we lack jurisdiction to review the Board’s determination
on whether assignor estoppel precludes it from instituting
inter partes review. We therefore dismiss Husky’s appeal,
and express no opinion on the merits of the Board’s con-
clusion that assignor estoppel may not bar an assignor or
his or her privies from petitioning for inter partes review.
               II.    ATHENA’S CROSS-APPEAL
    The question before us in the cross-appeal relates to
incorporation by reference, and ultimately to anticipation.
    We review the Board’s legal conclusions de novo, In re
Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), and the
Board’s factual findings underlying those determinations
for substantial evidence, In re Gartside, 203 F.3d 1305,
1316 (Fed. Cir. 2000). A finding is supported by substan-
tial evidence if a reasonable mind might accept the evi-
dence to support the conclusion. See Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938).
    Anticipation is a fact question that we review for sub-
stantial evidence. In re Gleave, 560 F.3d 1331, 1334 (Fed.
Cir. 2009). A prior art document may anticipate a claim if
it describes every element of the claimed invention, either
expressly or inherently. See Advanced Display Sys., Inc.
v. Kent State Univ., 212 F.3d 1272, 1282 (Fed. Cir. 2000).
Other material may be considered as part of that prior art
document if it is incorporated by reference. Id.
    A host document incorporates material by reference if
it “identif[ies] with detailed particularity what specific
material it incorporates and clearly indicate[s] where that
material is found in the various documents.” Id. Whether
and to what extent material is incorporated by reference
is a question of law we review de novo. See Harari v. Lee,
656 F.3d 1331, 1334 (Fed. Cir. 2011). In making such a
20                         HUSKY INJECTION MOLDING SYS. v.
                                  ATHENA AUTOMATION LTD.


determination, we assess whether a skilled artisan would
understand the host document to describe with sufficient
particularity the material to be incorporated. Id.
      Athena’s cross-appeal contests the Board’s determina-
tion that the prior art Glaesener does not incorporate the
prior art Choi by reference, and thereby the Board’s
finding that claims 2, 3, 17, and 19 are not unpatentable
as anticipated. Two specific paragraphs in Glaesener are
at issue. The first reads: “The tie-bar nuts can be secured
. . . by any appropriate mechanism, such as the pineapple
and toothed-ring mechanism described in [Choi].”
Glaesener ¶ 0035. The second reads: “All cross-referenced
patents and application[s] referred to in this specification
are hereby incorporated by reference.” Id. ¶ 0049. The
Board determined that neither paragraph identifies with
sufficient particularity what material from Choi Glaesen-
er meant to incorporate.
    On appeal, Athena contends that it provided evidence
establishing that a skilled artisan would understand with
sufficient particularity what the “pineapple and toothed-
ring mechanism” language referred to in Choi. Alterna-
tively, Athena contends that the second statement effects
a broad incorporation that cannot be negated by the use of
a more precise incorporation statement elsewhere.
     We agree; Glaesener identifies with sufficient particu-
larity what it incorporates from Choi. As an initial mat-
ter, the fact that Choi does not recite either of the words
“pineapple” or “toothed-ring” throughout its disclosure is
ultimately of no moment. The incorporation standard
relies only on the reasonably skilled artisan and his or her
ability to deduce from language, however imprecise, what
a host document aims to incorporate. See Harari, 656
F.3d at 1331; Advanced Display, 212 F.3d at 1283; cf.
Gleave, 560 F.3d at 1334 (A “reference need not satisfy an
ipsissimis verbis [word-for-word] test” to anticipate.).
HUSKY INJECTION MOLDING SYS.   v.                         21
ATHENA AUTOMATION LTD.


    Even so, Choi explicitly identifies toothed components
when discussing its securing/clamping assemblies, i.e., its
locking mechanism. And, importantly, Figure 3A disclos-
es the only locking mechanism in Choi.
   Referring to Figs. 3A and 3B, in order for the se-
   curing/clamping assembly 22a of platen 14 to
   function with the tie bar 2a, tie bar 20a includes
   an elongated end section having a plurality of
   spaced protrusions in the form of teeth 38a sepa-
   rated by longitudinally extending inner slots 40a
   as shown in Fig. 3B. Accordingly, at the end of tie
   bar 20a is a toothed outer surface, as shown in Fig.
   3A. The toothed outer surface of tie bar 20a is in
   the form of longitudinal outer strips of teeth 39a
   extending in the axial direction of the tie bar,
   wherein the teeth 38a are preferably aligned in a
   radial direction on the tie bar and separated by a
   space in the axial direction. . . .
   Outer strips of teeth 39a and slots 40a of tie bar
   20a are adapted to engage and align, respectively,
   with inner teeth and grooves of securing/clamping
   assembly 22a . . . . Securing/clamping assembly
   22a is comprised of a member in the form of a pis-
   ton 44a . . . . Piston 44a includes an outer surface
   46a and an inner surface with axially extending
   teeth 48a separated by spaces in the axial direc-
   tion, which are adapted to engage teeth 38a of the
   strips of teeth 39a of tie bars 20a. A slight axial
   clearance is provided between the teeth 38a of tie
   bars 20a and the inner teeth 48a of toothed piston
   44a to allow for relative movement . . . .
Choi, col. 5 l. 40–col. 6 l. 5 (emphases added). A reasona-
bly skilled artisan would thus appreciate Glaesener’s
reference of “pineapple and toothed-ring” to describe, with
sufficient particularity, the above-referenced disclosure in
Choi. To find otherwise would be to undervalue the
22                         HUSKY INJECTION MOLDING SYS. v.
                                  ATHENA AUTOMATION LTD.


knowledge of a skilled artisan. Indeed, Athena identified
Figure 3a as the “pineapple and toothed-ring mechanism”
Glaesener referred to both in its petition for inter partes
review and during its trial at the Board. See J.A. 113–14;
J.A. 441–42. Nothing more was required.
    Glaesener’s two paragraphs, ¶ 0035 and ¶ 0049, ac-
cordingly work in concert to incorporate at least some
portions of Choi. It is therefore of no consequence wheth-
er Glaesener’s broader statement in fact incorporates the
rest of Choi, i.e., in its entirety. Cf. Harari, 656 F.3d at
1335–36. Ultimately, the Board erred in determining
that Glaesener does not incorporate Choi for purposes of
anticipation. Because the Board provided no further
reasoning why claims 2, 3, 17, and 19 were not anticipat-
ed, we vacate and remand for the Board to evaluate
anticipation in the first instance in light of Glaesen-
er/Choi.
                        CONCLUSION
    We have considered the remaining arguments in both
appeals, but find them unpersuasive. For the foregoing
reasons, we dismiss Husky’s appeal for lack of jurisdic-
tion; we vacate the Board’s decision on incorporation by
reference and its finding of no anticipation with respect to
claims 2, 3, 17, and 19; and we remand for further consid-
eration consistent with this opinion.
DISMISSED IN PART, VACATED AND REMANDED
                 IN PART
                          COSTS
     Costs to Athena.
  United States Court of Appeals
      for the Federal Circuit
                 ______________________

  HUSKY INJECTION MOLDING SYSTEMS LTD.,
                 Appellant

                            v.

            ATHENA AUTOMATION LTD.,
                   Cross-Appellant
               ______________________

                  2015-1726, 2015-1727
                 ______________________

   Appeals from the United States Patent and Trade-
mark Office, Patent Trial and Appeal Board in No.
IPR2013-00290.
               ______________________

PLAGER, Circuit Judge, concurring in part and dissenting
in part.
    I concur in the majority’s judgment regarding vacat-
ing and remanding the cross-appeal. I dissent from the
judgment that we lack jurisdiction to review the determi-
nation by the Patent Trial and Appeal Board (“Board”)
regarding whether assignor estoppel precludes it from
instituting inter partes review in this case. I believe the
majority’s reasoning is mistaken, and I respectfully
dissent from it and the conclusion to which it leads.
Regrettably, the majority’s view may contribute to the
already-existing confusion regarding which matters this
court can review on appeal from a final decision by the
Board.
2                           HUSKY INJECTION MOLDING SYS. v.
                                   ATHENA AUTOMATION LTD.


   Summarizing the case in its simplest terms, this is
why:
     Athena, pursuant to the statutory provisions of the
America Invents Act (“AIA”), filed its petition requesting
inter partes review of the ’536 patent owned by Husky.
Husky, in its preliminary response, stated its opposition
to the petition. It argued that Athena was barred from
filing its petition by the doctrine of assignor estoppel. The
Board rejected Husky’s argument; it took the position that
§ 311(a) of the AIA determined who could file a petition,
and that assignor estoppel did not provide an exception to
§ 311(a).
    The Board explained that § 311(a) provided simply
that “a person who is not the patent owner” could file a
petition; since Athena was not the owner, it was such a
person. The Board interpreted the provision to mean just
what it said and not to have an implicit exception that
would prevent a petitioner, who is subject to assignor
estoppel, from filing. Thus the Board applied essentially
a ‘plain meaning’ interpretation to the language of
§ 311(a). Thereafter, having determined that the petition
to institute was properly before it, the Board instituted
review and, in due course, issued a final written decision
on the merits, upholding some claims and invalidating
others.
    In its appeal to this court, Husky stated that the sin-
gle issue in its appeal is: “Did the Board legally err by
determining that, pursuant to 35 U.S.C. § 311, the doc-
trine of assignor estoppel does not apply to the inter
partes review concerning the ’536 patent . . . .” Appel-
lant’s Br. 1. Much of the briefing in this case focused on
the application of assignor estoppel at the decision to
institute stage, though some seemed to address more
broadly the issue of assignor estoppel’s application to
Board proceedings generally. Be that as it may, the only
issue properly raised by the record on appeal is the one
HUSKY INJECTION MOLDING SYS.   v.                         3
ATHENA AUTOMATION LTD.


initiated by the Board and identified by Husky: at the
time an initial petition is filed, does § 311(a) incorporate
an unstated exception regarding who can file an initial
petition, an exception based on assignor estoppel?
    Before we can address the correctness of the Board’s
resolution of that issue, we must first decide whether as a
matter of law we can review the Board’s determination, a
determination that was decisive regarding whether the
Board could institute inter partes review of the ’536
patent. A statute and a Supreme Court decision govern
the answer: Congress’s mandate in § 314(d) that “[t]he
determination . . . whether to institute an inter partes
review under this section shall be final and nonappeala-
ble,” and the recent opinion of the Supreme Court in
Cuozzo. 1
    It is clear from the prior opinions of this court, un-
questioned by the Supreme Court, that the statute bars
immediate review of a Board decision to institute an inter
partes review, whether by interlocutory appeal, 2 manda-
mus, 3 or other procedural device. 4 What has not been



   1      Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131
(2016).
   2    We have considered and rejected interlocutory ap-
peal of a decision not to institute. See St. Jude Med.,
Cardiology Div., Inc. v. Volcano Corp., 749 F.3d 1373,
1375–76 (Fed. Cir. 2014). We also have considered and
rejected interlocutory appeal or mandamus relief for a
decision to institute (later vacated by the Board). See
GEA Process Eng’g, Inc. v. Steuben Foods, Inc., 618 F.
App’x 667 (Fed. Cir. 2015).
    3   In re Procter & Gamble Co., 749 F.3d 1376, 1378–
79 (Fed. Cir. 2014).
    4   See HP Inc. v. MPHJ Tech. Inv., LLC, 817 F.3d
1339, 1344–47 (Fed. Cir. 2016) (on appeal of a final writ-
4                          HUSKY INJECTION MOLDING SYS. v.
                                  ATHENA AUTOMATION LTD.


clear is, when a final written decision of the Board is
appealed to this court, as provided by statute, 5 what
aspects, if any, of the Board’s decision to institute are
then reviewable?
    One part of that question is no longer in dispute—the
fact that a particular issue is determined initially by the
Board at the decision to institute stage does not affect the
reviewability of the issue at the final written decision
stage, so long as the issue remains relevant to the final
merits under review. See, e.g., Versata Dev. Grp., Inc. v.
SAP Am., Inc., 793 F.3d 1306, 1318–19, 1329 (Fed. Cir.
2015) (finding we could review on appeal of a final written
decision whether the Board correctly took jurisdiction
over the patent at issue as a CBM patent and whether the
Board was authorized to rely on § 101 in CBM cases); In
re Magnum Oil Tools Int’l, Ltd., No. 15-1300, 2016 WL
3974202 at *4 (Fed. Cir. July 25, 2016) (finding we could
review statements made by the Board in the decision to
institute that were later relied upon in the final written
decision).
    With regard to the larger question—on appeal to this
court of a final written decision, what aspects, if any, of
the initial decision to institute remain subject to review—
one view is that no aspect of the decision to institute is
reviewable. That seems to be what the statute literally
says, thus making the decision to institute entirely an
administrative determination, however it is made. That
is now a familiar argument, sometimes reflected in case
outcomes phrased in various ways based on assorted
distinctions in the cases.




ten decision, dealing with whether § 314(d) barred review
of an APA challenge to the Board’s decision to institute).
    5   § 319.
HUSKY INJECTION MOLDING SYS.   v.                         5
ATHENA AUTOMATION LTD.


    A different view, one that takes into account the long
tradition of judicial review of administrative decisions as
well as the mandate of the APA, suggests that the bar to
judicial review under § 314(d) should be understood as
limited to interlocutory appeals; what Congress wanted to
avoid was piecemeal appellate review. Once a final
written decision is rendered, the entire case on appeal is
properly before the court, including issues surrounding
the Board’s initial decision to institute review. In Cuozzo,
that was essentially the position of Justice Alito, with
whom Justice Sotomayor joined. See 136 S. Ct. at 2150–
53 (Alito, J., concurring in part and dissenting in part).
     The Cuozzo majority did not go as far as Justices
Alito and Sotomayor would; the Court determined that
§ 314(d) was not limited to barring interlocutory appeals.
Id. at 2140. However, by also rejecting the ‘no review of
the decision to institute’ view, the Court took an interme-
diate position that fundamentally altered the playing
field. The Court readily recognized that several factors
pointed in favor of precluding any review of the Patent
Office’s institution decisions. Id. at 2139–41. Neverthe-
less, said the Court, “in light of § 314(d)’s own text and
the presumption favoring review,” there is one category of
cases when the bar of § 314(d) applies, and at least three
others when it may not.
    The one category in which the bar applies is when
“the grounds for attacking the decision to institute inter
partes review consist of questions that are closely tied to
the application and interpretation of statutes related to
the Patent Office’s decision to initiate inter partes re-
view.” Id. at 2141. The Court then stated “that we need
not, and do not, decide the precise effect of § 314(d) on
appeals that [1] implicate constitutional questions, that
[2] depend on other less closely related statutes, or that
6                           HUSKY INJECTION MOLDING SYS. v.
                                   ATHENA AUTOMATION LTD.


[3] present other questions of interpretation that reach, in
terms of scope and impact, well beyond ‘this section.’” Id. 6
    Thus the Court tells us that, despite the express lan-
guage of § 314(d), this court’s review on appeal of a final
written decision is not limited to the substantive merits of
the case under §§ 102 and 103, but may include aspects of
the Board’s decision to institute. For us, then, the issue
in this case is where does assignor estoppel fit in the
Court’s matrix of what now can be reviewed? 7
    Assignor estoppel is an equitable doctrine that is rec-
ognized in the common law. 8 Given the long tradition of
judicial review of administrative decision-making, 9 and
the Supreme Court’s specific reference in Cuozzo to the
APA’s provisions mandating review of agency action, 10 it
would seem anomalous to say that the application of such
a rule to proceedings before the Board, a unit of an ad-


    6    The Court went further to explain that it did not
preclude review of a final decision when a petition raised
a due process problem with the entire proceeding, nor did
the Court intend to enable an agency to act outside its
statutory limits. Id. at 2141–42. The Court observed that
such “shenanigans” may be reviewable under § 319 and
the APA; similar to its treatment of the three reviewabil-
ity categories, the Court did not elaborate on what consti-
tutes ‘shenanigans.’
     7   The first category, constitutional questions, is not
before us as no constitutional issues have been raised.
     8   “Assignor estoppel is an equitable doctrine that
prevents one who has assigned the rights to a patent (or
patent application) from later contending that what was
assigned is a nullity.” Diamond Sci. Co. v. Ambico, Inc.,
848 F.2d 1220, 1224 (Fed. Cir. 1988).
     9   See, e.g., Bowen v. Mich. Acad. of Family Physi-
cians, 476 U.S. 667, 670 (1986); 5 U.S.C. § 702.
     10  Id. at 2142 (citing 5 U.S.C. §§ 706(2)(A)–(D)).
HUSKY INJECTION MOLDING SYS.    v.                           7
ATHENA AUTOMATION LTD.


ministrative agency, is exclusively for the agency to
decide. Applying the Cuozzo criteria, we must examine
whether, by basing its decision on its ‘interpretation’ of
what would appear to be a ‘related statute,’ the Board has
insulated itself from judicial review? I think not.
    For one, the doctrine of assignor estoppel is in the na-
ture of a common law doctrine, and not itself based on
statute. We should be reluctant to allow immunizing
judicial review simply because the Board may attribute
its decision to an interpretation of a ‘related’ statute.
That could open the door to possible manipulation by
parties in presenting and arguing cases before the Board
and this court.
    More importantly, in order to honor the Supreme
Court’s direction to this court to exercise judicious review
over determinations of the Board, including when called
for by extending that review to the Board’s decisions to
institute, we must take a close look at what is actually
involved. Even if the Board is presumed to have succeed-
ed in tying the question of assignor estoppel to interpreta-
tion of a ‘related statute,’ in this case § 311(a), by the way
it decided the matter, it is not so clear that this is “closely
tied to the application and interpretation of statutes
related to the Patent Office’s decision to initiate inter
partes review.” Id. at 2141. The decision to institute
inter partes review is governed primarily by the specifics
of § 314(a)–(c). It would not be beyond reason to consider
§ 311 to be instead a “less closely related statute.” (The
terms of the second category in Cuozzo).
    And beyond that, the question of whether assignor es-
toppel applies to the decision to institute made by the
Board in this case could be considered to be one that
“present[s] other questions of interpretation that reach, in
terms of scope and impact, well beyond ‘this section.’” Id.
(The terms of the third category in Cuozzo). And again,
the phrase, “this section,” put in quotes in the original,
8                           HUSKY INJECTION MOLDING SYS. v.
                                   ATHENA AUTOMATION LTD.


serves as an apparent reference to the other subparts of
§ 314.
    The Supreme Court’s pass of the “precise effect of
§ 314(d) on appeals that implicate” those categories
means that this court must undertake that determination
in future cases. Applying either of those Cuozzo catego-
ries to cases before this court, including issues decided in
past cases, reveals that there is a range of reviewable
issues that this court is obligated to consider. Examples
may include, among others, filing deadlines and joinder
and estoppel issues. 11
    I offer no opinion as to whether the Board correctly
determined that assignor estoppel does or does not apply
to bar the petition in this case; that issue is yet to be
addressed. In my view it is necessary that we decide that
issue as part of a proper judicial review of the case before
us on final written decision. Whether under the second or
third of Cuozzo’s suggested categories for review, or
because it is not within Cuozzo’s basic standard for apply-
ing the bar of § 314(d) in the first instance, the question of
whether the Board properly ruled on the application of
assignor estoppel to this case is clearly subject to this
court’s judicial power of review.
    Accordingly, I find the majority’s analysis of this case,
its unnecessary commentary approving prior cases that
may no longer be good law in light of Cuozzo, and its
discussion of why the question of the application of as-
signor estoppel to this case does not relate to “the Board’s
ultimate invalidation authority,” unhelpful. From the
majority’s refusal to undertake the required review of the




    11Accord Judge Reyna’s concurring opinion in Wi-Fi
One, LLC v. Broadcom Corp., No. 15-1944, 2016 WL
4933298, at *8–9 (Sept. 16, 2016) (Reyna, J., concurring).
HUSKY INJECTION MOLDING SYS.   v.                     9
ATHENA AUTOMATION LTD.


Board’s decision, the issue properly raised on appeal, I
respectfully dissent.
