Case: 19-1152   Document: 68     Page: 1   Filed: 02/25/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

           COLLABO INNOVATIONS, INC.,
                    Appellant

                            v.

                SONY CORPORATION,
                      Appellee

                   UNITED STATES,
                       Intervenor
                 ______________________

                       2019-1152
                 ______________________

     Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. IPR2017-
 00960.
                   ------------------------------

           COLLABO INNOVATIONS, INC.,
                    Appellant

                            v.

                SONY CORPORATION,
                      Appellee

                   UNITED STATES,
                      Intervenor
Case: 19-1152    Document: 68     Page: 2   Filed: 02/25/2020




 2           COLLABO INNOVATIONS, INC. v. SONY CORPORATION




                  ______________________

                        2019-1154
                  ______________________

     Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. IPR2017-
 00958.
                  ______________________

                Decided: February 25, 2020
                 ______________________

      DANIEL FLETCHER OLEJKO, Bragalone Conroy PC, Dal-
 las, TX, argued for appellant. Also represented by PATRICK
 J. CONROY, MONTE BOND, TERRY SAAD.

    ANDREW BALUCH, Smith Baluch LLP, Washington, DC,
 argued for appellee. Also represented by MATTHEW A.
 SMITH, Menlo Park, CA.

     DENNIS FAN, Appellate Staff, Civil Division, United
 States Department of Justice, Washington, DC, argued for
 intervenor. Also represented by SCOTT R. MCINTOSH,
 JOSEPH H. HUNT; THOMAS W. KRAUSE, FARHEENA YASMEEN
 RASHEED, Office of the Solicitor, United States Patent and
 Trademark Office, Alexandria, VA.
                 ______________________

     Before PROST, Chief Judge, LOURIE and CLEVENGER,
                      Circuit Judges.
      Opinion for the court filed by Chief Judge PROST.
      Opinion dissenting in part filed by Circuit Judge
                       CLEVENGER.
 PROST, Chief Judge.
     Collabo Innovations, Inc. (“Collabo”) appeals from the
Case: 19-1152     Document: 68     Page: 3    Filed: 02/25/2020




 COLLABO INNOVATIONS, INC. v. SONY CORPORATION               3



 final written decisions of the Patent Trial and Appeal
 Board (“Board”) in two inter partes reviews, each finding
 claims 1–18 of U.S. Pat. No. 7,023,034 (“the ’034 patent”)
 unpatentable. Because we agree with the Board that Col-
 labo did not present a timely claim construction argument,
 and because substantial evidence supports the Board’s
 findings regarding the prior art, we affirm.
                               I
      Collabo owns the ’034 patent, which is generally di-
 rected to a “solid-state imaging device in which a plurality
 of light-sensitive elements are arranged in a matrix form.”
 ’034 patent col. 1 ll. 7–10. Relevant to this appeal, the ’034
 patent describes and claims a pair of “reflecting walls” that
 exist over each light-sensitive element (such as a photodi-
 ode), partitioning each element from neighboring light-sen-
 sitive elements. Light that approaches the photodiode at
 an oblique angle, which might otherwise be inadvertently
 received by an adjacent photodiode, instead reflects off of
 the reflecting walls onto the aperture of the desired photo-
 diode, preventing color mixing and minimizing variation
 across the image.
     Sony Corporation (“Sony”) filed two petitions for inter
 partes review of the ’034 patent. The first petition alleged
 that each of claims 1–18 was either anticipated by Japa-
 nese Patent Application Publication No. 2001-237404 (“To-
 moda”), or obvious over Tomoda in view of various
 additional references including, inter alia, Japanese Pa-
 tent Application Publication No. H11-087674 (“Abe”). Sony
 Corp. v. Collabo Innovations, Inc., No. IPR2017-00958, Pa-
 per 31, at 10 (PTAB Aug. 31, 2018) (“-958 Decision”). The
 second petition alleged that the same claims were rendered
 obvious by U.S. Patent Application Publication No.
 2001/0026322 (“Takahashi”) in view of various secondary
 references including Abe.         Sony Corp. v. Collabo
Case: 19-1152    Document: 68      Page: 4   Filed: 02/25/2020




 4           COLLABO INNOVATIONS, INC. v. SONY CORPORATION




 Innovations, Inc., No. IPR2017-00960, Paper 31, at 10
 (PTAB Aug. 31, 2018) (“-960 Decision”). 1
      The Board instituted trial on both petitions, held a
 consolidated hearing, and issued separate final written
 decisions concluding that claims 1–18 are unpatentable
 under each set of grounds. The decisions were unanimous
 with respect to claims 1, 2, 4–11, and 13–18. With respect
 to claims 3 and 12, a majority of the Board concluded that
 Abe discloses the claim limitation “wherein a vertical cross
 section of the reflecting wall is a trapezoid whose upper
 base is longer than a lower base.” Administrative Patent
 Judge Anderson dissented in each case and would have
 found claims 3 and 12 not unpatentable. -958 Decision at
 69; -960 Decision at 72.
    Collabo timely appealed the Board’s decisions.       We
 have jurisdiction under 28 U.S.C. § 1295(a)(4)(A).
                              II
      Collabo presents two arguments on appeal. First, it ar-
 gues that the Board erred by adopting an unreasonably
 broad construction of “reflecting walls,” and therefore its
 decision with respect to all claims must be reversed. Ap-
 pellant’s Br. 32. Second, Collabo argues that the Board’s
 decision with respect to claims 3 and 12 must be reversed
 for the additional reason that the Board’s finding that Abe




     1  Sony’s two petitions are largely identical for the
 purposes of this appeal. For clarity, this opinion refers to
 the Board decisions, procedural history, briefing, and joint
 appendix of the -958 IPR (Appeal No. 19-1154) except
 where otherwise noted.
Case: 19-1152     Document: 68     Page: 5    Filed: 02/25/2020




 COLLABO INNOVATIONS, INC. v. SONY CORPORATION               5



 discloses a trapezoidal reflecting wall is not supported by
 substantial evidence. Id. at 49. We address each in turn. 2
                               A
      During an inter partes review, claims are given their
 broadest reasonable interpretation consistent with the
 specification. Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct.
 2131, 2146 (2016). 3 Applying that standard, the Board con-
 strued the term “reflecting walls” as “structures having ap-
 proximately vertical surfaces that reflect light.” -958
 Decision at 16. Collabo now argues that this was unrea-
 sonably broad, and the Board should have given the term
 its “plain and ordinary meaning,” which it contends is “a
 wall that reflects oblique light from a micro lens onto a cor-
 responding light-sensitive element.” Appellant’s Br. 43.
 Sony responds that Collabo waived its claim construction
 argument by failing to raise it before the Board in a timely


     2    In its opening brief, Collabo also argued that the
 Board’s application of inter partes review to patents issued
 before the passage of the Leahy-Smith America Invents Act
 was an unconstitutional taking or a violation of due pro-
 cess. Appellant’s Br. 54–50. Prior to Collabo’s reply brief,
 however, this court issued Celgene Corporation v. Peter,
 concluding that such actions were not unconstitutional.
 931 F.3d 1342, 1362–63 (Fed. Cir. 2019). Collabo conceded
 on reply that its arguments were “foreclosed by the Court’s
 recent precedent in Celgene” and related cases. Appellant’s
 Reply Br. 28. We agree, and therefore do not further ad-
 dress Collabo’s constitutional argument.
      3   Although this standard has changed, the broadest
 reasonable interpretation continues to apply to petitions,
 like those at issue here, filed before November 13, 2018.
 See Changes to the Claim Construction Standard for Inter-
 preting Claims in Trial Proceedings Before the Patent Trial
 and Appeal Board, 83 Fed. Reg. 51,340 (Oct. 11, 2018) (cod-
 ified at 37 C.F.R. pt. 42).
Case: 19-1152     Document: 68     Page: 6    Filed: 02/25/2020




 6            COLLABO INNOVATIONS, INC. v. SONY CORPORATION




 manner, and that in any case the Board’s construction was
 correct. It notes that Collabo did not raise any claim con-
 struction challenge until the hearing before the Board, and
 the Board found that untimely challenge “expressly or im-
 pliedly waived.” Appellee’s Br. 21 (quoting -958 Decision
 at 16).
     Decisions related to compliance with the Board’s proce-
 dures are reviewed for an abuse of discretion.” Intelligent
 Bio-Systems, Inc. v. Illumina Cambridge, Ltd., 821 F.3d
 1359, 1367 (Fed. Cir. 2016). The Board’s authority to con-
 sider timely arguments, and to find untimely arguments
 waived, is a matter of compliance with 37 C.F.R. § 42.5 and
 the Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756,
 48,768 (Aug. 14, 2012), which states that “[n]o new evi-
 dence or arguments may be presented at the oral argu-
 ment.” See Dell Inc. v. Acceleron, LLC, 884 F.3d 1364, 1369
 (Fed. Cir. 2018). Therefore, the Board’s decision to find an
 argument waived, as it did in this case, is reviewed for an
 abuse of discretion. See id. (applying abuse of discretion
 standard to Board’s refusal to consider “untimely argu-
 ment”).
      In its IPR petition, Sony proposed that the term “re-
 flecting walls” be construed as “structures having approxi-
 mately vertical surfaces that reflect light.” J.A. 92. Collabo
 did not contest this construction in its patent owner pre-
 liminary response. J.A. 594 (“[F]or the purposes of this
 Preliminary Response, Patent Owner does not offer a con-
 struction for any of the claim terms in the ’034 patent.”).
 On that record, “and based on the [s]pecification,” the
 Board preliminarily adopted Sony’s construction in its in-
 stitution decision. J.A. 779.
     Following the Board’s institution decision, Collabo
 again declined to contest Sony’s construction or the Board’s
 adoption of that construction. In its patent owner re-
 sponse, Collabo stated that it had “applie[d] the Board’s
 construction for its analysis.” J.A. 874.         Similarly,
Case: 19-1152    Document: 68      Page: 7    Filed: 02/25/2020




 COLLABO INNOVATIONS, INC. v. SONY CORPORATION              7



 Collabo’s expert testified that he “applied the constructions
 recommended by the board,” but “doesn’t agree or disagree”
 with them. J.A. 1274. Collabo expressly reserved the right
 “to seek alternative constructions in other proceedings and
 matters,” but did not indicate that it was challenging the
 Board’s construction in this proceeding. J.A. 874 (empha-
 sis added).
     At the hearing before the Board, however, Collabo nev-
 ertheless attempted to challenge the Board’s claim con-
 struction. See J.A. 1500 (“disagree[ing]” with “the current
 construction that has been preliminarily adopted by the
 Board”). When pressed, Collabo conceded that it had not
 previously alerted the Board to its claim construction chal-
 lenge, and that its claim construction challenge “is not in
 the record.” J.A. 1499. Following the hearing, Collabo filed
 a motion requesting additional briefing on the construction
 of reflecting walls. See J.A. 1465. The Board denied this
 motion, noting that Collabo “had ample opportunity to ar-
 gue for an alternative construction” in its patent owner re-
 sponse but “did not do so.” J.A. 1466.
      In its final written decision, the Board reiterated that
 Collabo had not raised a timely claim construction argu-
 ment and concluded that Collabo “expressly or impliedly
 waived any argument contrary to the preliminary con-
 struction from the Institution Decision.” -958 Decision at
 13. After further considering the claim language, the spec-
 ification, and the prosecution history, the Board formally
 adopted Sony’s proposed construction of reflecting walls
 and performed its obviousness analysis under that con-
 struction. Id. at 15–16.
     On this record, we agree with Sony that the Board did
 not abuse its discretion when it declined to consider Col-
 labo’s claim construction argument. Collabo admitted at
 the hearing that it had not previously raised this argu-
 ment. J.A. 1499. And neither Collabo’s patent owner pre-
 liminary response nor its patent owner response contain a
Case: 19-1152    Document: 68      Page: 8    Filed: 02/25/2020




 8            COLLABO INNOVATIONS, INC. v. SONY CORPORATION




 facial challenge to Sony’s proposed claim construction or
 the Board’s adoption of that construction. See J.A. 594,
 874. Accordingly, Collabo did not properly present its
 claim construction argument before the Board and is not
 entitled to present that argument before us. See In re Bax-
 ter Int’l, 678 F.3d 1357, 1362 (Fed. Cir. 2012) (“Absent ex-
 ceptional circumstances, we generally do not consider
 arguments that the applicant failed to present to the
 Board”) (internal citations omitted).
     Collabo’s argument to the contrary is not persuasive.
 It primarily relies on our non-precedential opinion in Inter-
 tainer, Inc. v. Hulu, LLC, 660 F. App’x 943 (Fed. Cir. Sept.
 26, 2016) for the proposition that a party’s claim construc-
 tion arguments on appeal are not waived so long as they
 are “consistent with those it made to the Board.” Appel-
 lant’s Br. 43–44. We disagree that Intertainer presents the
 same situation as this case. In Intertainer, this court con-
 cluded that a party’s claim construction challenge was not
 waived because, although framed differently, it took “the
 same position” before the Board that it took on appeal. 660
 F. App’x at 947. As we noted, the “original scope of Inter-
 tainer’s claim construction position” had not changed. Id.
 at 948.
      The same cannot be said for Collabo’s position here. In
 its patent owner response and patent owner preliminary
 Response, Collabo acquiesced to Sony and the Board’s con-
 struction, and expressly applied that construction in its
 analysis. Now, on appeal, it argues that this construction
 was incorrect, and the term should be accorded its “plain
 and ordinary meaning.” Appellant’s Br. 28. And, for the
 first time, Collabo specifies that this plain and ordinary
 meaning is “a wall that reflects oblique light from a micro
 lens onto a corresponding light-sensitive element.” Appel-
 lant’s Br. 42–43. Because Collabo’s new claim construction
 argument on appeal does not present “the same position” it
 took below, Intertainer is inapplicable.
Case: 19-1152     Document: 68     Page: 9    Filed: 02/25/2020




 COLLABO INNOVATIONS, INC. v. SONY CORPORATION               9



    Because Collabo did not raise its claim construction ar-
 gument below, that argument is waived, and we need not
 address its merits on appeal.
                               B
     Independent of its claim construction argument, Col-
 labo challenges the Board’s conclusion that the prior art
 renders claims 3 and 12 obvious. Claims 3 and 12 each
 recite the dependent limitation “wherein a vertical cross
 section of the reflecting wall is a trapezoid whose upper
 base is longer than a lower base.” Collabo does not dispute
 that the Abe reference discloses a vertical cross section of a
 reflecting wall, but argues that substantial evidence does
 not support the Board’s conclusion that the cross section
 disclosed in Abe is a trapezoid.
      “We review the PTAB’s factual findings for substantial
 evidence and its legal conclusions de novo.” Redline Detec-
 tion, LLC v. Star Envirotech, Inc., 811 F.3d 435, 449 (Fed.
 Cir. 2015) (citation omitted). While obviousness is ulti-
 mately a question of law, it is based on underlying findings
 of fact. In re Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000).
 As relevant here, the Board’s findings regarding “the scope
 and content of the prior art” are reviewed for substantial
 evidence. Id. at 1319 (internal quotation omitted). “Sub-
 stantial evidence is something less than the weight of the
 evidence but more than a mere scintilla of evidence. It is
 such relevant evidence as a reasonable mind might accept
 as adequate to support a conclusion.” In re NuVasive, Inc.,
 842 F.3d 1376, 1379–80 (Fed. Cir. 2016) (internal citations
 and quotations omitted). “‘If the evidence in the record will
 support several reasonable but contradictory conclusions,
 we will not find the Board’s decision unsupported by sub-
 stantial evidence simply because the Board chose one con-
 clusion over another plausible alternative.’” Redline, 811
 F.3d at 449 (quoting In re Jolley, 308 F.3d 1317, 1320 (Fed.
 Cir. 2002)).
Case: 19-1152      Document: 68    Page: 10    Filed: 02/25/2020




 10             COLLABO INNOVATIONS, INC. v. SONY CORPORATION




      In its petition, Sony relied primarily on Figure 3 of Abe
 and the accompanying description to teach the “is a trape-
 zoid” limitation. Figure 3 of the English translation of Abe
 is reproduced below:




 J.A. 461. Sony’s petition further explained that element 9
 is a “second light shielding film,” having “lateral faces 9a”
 that are approximately vertical surfaces, and upper ex-
 tended portions 92. J.A. 122–123 (citing Abe ¶¶ 38, 47).
 Sony provided the following annotation of Figure 3 to sup-
 port its contention that this figure discloses a trapezoidal
 reflecting wall:
Case: 19-1152     Document: 68      Page: 11     Filed: 02/25/2020




 COLLABO INNOVATIONS, INC. v. SONY CORPORATION                 11




 J.A. 122. As Sony explained:
     Abe recites that “upper extended portions 92 may
     be extended so as to incline upwardly from the up-
     per ends of the lateral faces 9a of the second light
     shielding film 9.” ([Abe], ¶0044)([Expert declara-
     tion], ¶146). This describes that the vertical cross
     section of the reflecting wall is a trapezoid whose
     upper base is longer than a lower base, as seen in
     Fig. 3. ([Expert declaration], ¶146).
 J.A. 123. Sony cited to the declaration of its expert, who
 opined that these passages of Abe, “as shown in Abe’s Fig-
 ure 3 . . . disclose[] that the vertical cross section of the re-
 flecting wall is a trapezoid whose upper base is longer than
 a lower base.” J.A. 263–64. Based on this explanation, the
 Board correctly explained in its final written decision that
 Sony “has identified, through its annotations, what it con-
 tends are the boundaries of Abe’s trapezoidal reflecting
 wall, namely, the lateral faces of light shielding film 9, the
 bottom surface of light shielding film 9, and the top surface
 of second insulating film 14 within the interior of light
Case: 19-1152      Document: 68    Page: 12     Filed: 02/25/2020




 12             COLLABO INNOVATIONS, INC. v. SONY CORPORATION




 shielding film 9.” -958 Decision at 41 (citing Abe ¶¶ 38–
 39).
      The Board acknowledged Collabo’s counter-argument
 that Abe does not disclose a trapezoid. “Petitioner relies on
 Abe’s U-shaped design or the cup shape or bowl-shaped de-
 sign of these walls . . . Patent Owner argues that there is
 no top to Abe’s structure and, because it is a cup, it is not a
 trapezoid.” -958 Decision at 43–44. Collabo provided the
 following annotation to represent its preferred reading of
 Abe:




 -960 Decision at 46; see also -958 Decision at 44 (incorpo-
 rating Collabo’s arguments from the ’960 IPR). 4 As the
 Board noted, Collabo and its expert contended that the
 striped green lines “represent transparent insulation 14 of
 Abe.” -960 Decision at 46.



      4 The 26 degree angle measurement depicted in this
 annotation correlates to an unrelated argument made be-
 low, which Collabo does not pursue on appeal.
Case: 19-1152     Document: 68      Page: 13     Filed: 02/25/2020




 COLLABO INNOVATIONS, INC. v. SONY CORPORATION                 13



     After weighing both parties’ positions, the Board found
 that Abe does disclose a trapezoid. Citing Sony’s petition,
 as well as the same portions of Abe cited in Sony’s petition,
 the Board determined that “the entire cup shaped struc-
 ture, including the material within, is the recited ‘reflect-
 ing wall.’” -958 Decision at 45. As a result, “Abe’s
 description [of Figure 3] . . . describes that the vertical cross
 section of the reflecting wall is a trapezoid.” Id. (citing Abe
 ¶ 44, Sony’s petition, and the declaration of Sony’s expert).
     Collabo argues that we must reverse the Board because
 this finding was not supported by substantial evidence. We
 disagree. The Board was presented with two alternative
 interpretations of Abe, both supported by citations to Fig-
 ure 3, the text of the reference, and expert testimony. The
 question before us is not which of these interpretations we
 would find more compelling in a vacuum. “[I]t is not for us
 to second-guess the Board’s assessment of the evidence.”
 Velander v. Garner, 348 F.3d 1359, 1378–79 (Fed. Cir.
 2003). Rather, “[o]ur task is to determine whether sub-
 stantial evidence supports the conclusion chosen by the
 Board.” Id. Here, we conclude that it does.
     Figure 3 of Abe, on its face, discloses a trapezoidal
 shape. As the Board described, it shows a quadrilateral
 bounded by the lateral faces of light shielding film 9, the
 bottom surface of light shielding film 9, and the top surface
 of second insulating film 14 within the interior of light
 shielding film 9. -958 Decision at 41 (citing Abe ¶¶ 38–39).
 The top surface, made of a portion of second insulating film
 14, is longer than the bottom surface of light shielding film
 9. Abe undisputedly discloses that the lateral faces of the
 light shielding film 9 reflect light. See Appeal No. 19-1152
 J.A. 937 (Collabo’s expert referring to light shielding film 9
 as a “reflector”). Therefore, we hold that substantial evi-
 dence supports the Board’s conclusion that Abe discloses “a
 vertical cross section of the reflecting wall is a trapezoid
 whose upper base is longer than a lower base.”
Case: 19-1152      Document: 68    Page: 14    Filed: 02/25/2020




 14             COLLABO INNOVATIONS, INC. v. SONY CORPORATION




      None of Collabo’s arguments on appeal demonstrate
 that the Board’s conclusion was not supported by substan-
 tial evidence. First, Collabo argues that it was “improper
 for the Board to conclude ‘that the entire cup shaped struc-
 ture, including the material within, is the recited reflecting
 wall,” because Sony allegedly “never argued [this] in the
 petition.” Appellant’s Br. 51 (quoting -958 Decision at 45).
 We disagree. In its petition, Sony presented the annotation
 shown above, overlaying a solid brown trapezoid on top of
 light shielding film 9 and insulating film 14 as depicted in
 Figure 3 of Abe. This annotation could reasonably be
 read—indeed, could only credibly be read—as an argument
 by Sony that the trapezoidal reflecting wall includes both
 the light shielding film and the insulating film inside of it,
 as both were shown within the brown trapezoidal annota-
 tion. See also Appeal No. 19-1152 J.A. 992 (Sony’s expert
 referring to insulating film 14 as the “top of the structure
 comprising the reflecting walls” during his deposition).
 Thus, we are not persuaded by Collabo’s argument that the
 Board “changed the ‘thrust’ of Sony’s unpatentability the-
 ory,” Appellant’s Br. 51, when it concluded that the entire
 cup shaped structure, including the material within, is the
 reflecting wall. 5



      5  On appeal, Collabo does not argue that Abe fails to
 disclose a trapezoid merely because the trapezoid is made
 of two different materials. See Oral Arg. at 9:53–10:01,
 available at http://www.cafc.uscourts.gov/oral-argument-
 recordings (“We’re not arguing that you can’t have a trape-
 zoidal reflecting wall that’s made of multiple materials.
 That’s not our argument.”). Such an argument would be
 meritless. The Board’s construction of “reflecting walls”
 does not preclude a reflecting wall made of multiple mate-
 rials. Nor could it, as the ’034 patent itself depicts a re-
 flecting wall made of a cup-shaped metal layer filled with
 a second material. See ’034 patent at Fig. 5H.
Case: 19-1152    Document: 68     Page: 15    Filed: 02/25/2020




 COLLABO INNOVATIONS, INC. v. SONY CORPORATION             15



     Collabo further argues that, even assuming insulating
 film 14 was part of the reflecting wall in Abe, the resulting
 shape is not a trapezoid. Collabo presents numerous pro-
 posed annotations, shown below, to demonstrate what it
 contends are the shapes of the various structures in Abe.
 For example, it presents the following annotation of Abe’s
 Figure 3 purporting to show that “‘insulating film 14’ is not
 a trapezoid, it is a different shape entirely.”




 Appellant’s Br. 52. Collabo presents another annotation of
 the same figure, shown below, to alternatively argue that
 Abe’s walls are not trapezoids because its “structures have
 at least eight edges or sides and vertices or corners.”




 Appellant’s Br. 53.
     As an initial matter, this argument was not made be-
 fore the Board and is therefore waived. See Baxter, 678
 F.3d at 1362. Collabo argued to the Board that Abe’s struc-
 ture was “simply not a trapezoid.” J.A. 1508–09. But it
 made that statement only in the context of its argument
 that Abe discloses a “U-shaped design or [a] cup shape.” Id.
 at 1509. The two new shapes argued by Collabo in its
Case: 19-1152      Document: 68      Page: 16   Filed: 02/25/2020




 16             COLLABO INNOVATIONS, INC. v. SONY CORPORATION




 opening brief, which are neither trapezoid nor cup, do not
 appear anywhere in the record before the Board, nor does
 any corresponding argument.
     Even if the argument were not waived, we agree with
 Sony that, at least as to the alleged “eight edges” annota-
 tion, no evidence supports requiring the level of geometric
 perfection that Collabo now advocates. Appellee’s Br. 61.
 That is especially true where, as here, both parties’ experts
 have conceded that the figures of Abe and the ’034 patent
 are rough approximations which do not necessarily reflect
 the detailed physical characteristics of the device. See J.A.
 934. Further, Collabo’s arguments improperly require us
 to perform fact finding. We are not in a position to evaluate
 the correctness of Collabo’s new annotations. “It is not our
 role to ask whether substantial evidence supports fact-find-
 ings not made by the Board, but instead whether such evi-
 dence supports the findings that were in fact made.”
 Regents of Univ. of Cal. v. Broad Inst., Inc., 903 F.3d 1286,
 1294 (Fed. Cir. 2018).
     For the reasons discussed above, substantial evidence,
 including Abe’s figures and text, supports the Board’s con-
 clusion that Abe discloses “a vertical cross section of the
 reflecting wall is a trapezoid whose upper base is longer
 than a lower base.” Although Collabo presents an alterna-
 tive explanation of the Abe reference, that is insufficient
 for reversal under the substantial evidence standard. See
 AK Steel Corp. v. U.S., 192 F.3d 1367, 1371 (Fed. Cir. 1999)
 (“[O]ur analysis is not whether we agree with [the agency]’s
 conclusions, nor whether we would have come to the same
 conclusions reviewing the evidence in the first instance,
 but only whether [the agency]’s determinations were rea-
 sonable.”).
                               III
      We have considered Collabo’s remaining arguments
 and find them unpersuasive. For the foregoing reasons, we
 affirm the Board’s construction of “reflecting wall” and its
Case: 19-1152    Document: 68    Page: 17      Filed: 02/25/2020




 COLLABO INNOVATIONS, INC. v. SONY CORPORATION             17



 conclusion that claims 3 and 12 are unpatentable as obvi-
 ous.
                        AFFIRMED
                           COSTS
     The parties shall bear their own costs.
Case: 19-1152   Document: 68      Page: 18   Filed: 02/25/2020




         NOTE: This disposition is nonprecedential.


    United States Court of Appeals
        for the Federal Circuit
                  ______________________

            COLLABO INNOVATIONS, INC.,
                     Appellant

                             v.

                 SONY CORPORATION,
                       Appellee

                    UNITED STATES,
                        Intervenor
                  ______________________

                        2019-1152
                  ______________________

     Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. IPR2017-
 00960.
                   ------------------------------

            COLLABO INNOVATIONS, INC.,
                     Appellant

                             v.

                 SONY CORPORATION,
                       Appellee

                    UNITED STATES,
                       Intervenor
Case: 19-1152      Document: 68    Page: 19   Filed: 02/25/2020




 2              COLLABO INNOVATIONS, INC. v. SONY CORPORATION




                    ______________________

                          2019-1154
                    ______________________

     Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. IPR2017-
 00958.
                  ______________________

 CLEVENGER, Circuit Judge, dissenting-in-part.
     I join Parts I and II.A of the majority’s opinion, but I
 respectfully dissent from Part II.B. The majority con-
 cludes, as did the Board, that JPA Publication No. H11-
 87674 (“Abe”) discloses a “reflecting wall” having a vertical
 cross section that “is a trapezoid whose upper base is longer
 than a lower base.” According to the majority, the Board’s
 finding that Abe satisfies this additional limitation of de-
 pendent claims 3 and 12 of U.S. Patent No. 7,023,034 (the
 “’034 patent”) was supported by substantial evidence be-
 cause, when drawn together, light shielding film 9 and a
 portion of the insulating film 14 form a trapezoid whose
 upper base is longer than a lower base. But by blessing the
 Board’s analysis, the majority commits the same error.
 The question is not whether two structures (or portions
 thereof) form a trapezoid when combined, or even whether
 Fig. 3 of Abe, on its face, discloses a “trapezoidal shape.”
 The appropriate inquiry is whether substantial evidence
 supports the Board’s finding that Abe actually discloses
 combining multiple, separately-designated, structures
 such that their combination forms a trapezoidal “reflecting
 wall”—a structure having approximately vertical surfaces
 that reflects light? Because Abe does not disclose a trape-
 zoidal “reflecting wall,” I respectfully dissent-in-part.
Case: 19-1152    Document: 68       Page: 20    Filed: 02/25/2020




 COLLABO INNOVATIONS, INC. v. SONY CORPORATION                3



                               I
      Abe’s cup-shaped light shielding film 9, on its own, is a
 structure having approximately vertical surfaces that re-
 flect light—in other words, it is, on its own, a “reflecting
 wall.” It is undisputed that this light shielding film, how-
 ever, is not a trapezoid. Thus, in an attempt to conjure up
 a trapezoidal “reflecting wall” where one does not other-
 wise exist, Sony simply drew a trapezoid onto Fig. 3 of Abe
 encompassing both light shielding film 9 and the portion of
 the insulating film 14 sitting directly above it.
       In its Final Written Decision, the Board relied on
 Sony’s annotated version of Fig. 3 of Abe in finding first
 that “Figure 3 of Abe shows a ‘pair of reflecting walls’ (i.e.,
 a ‘plurality of reflecting walls,’ as claimed),” and second
 that “Abe’s description that ‘upper extended portions 92
 may be extended so as to incline upwardly from the upper
 ends of the lateral faces 9a of the second light shielding film
 9’ . . . ‘describe that the vertical cross section of the re-
 flecting wall is a trapezoid whose upper base is
 longer than a lower base.’” J.A. 47–48 (internal cita-
 tions omitted) (bold in original). Thus, the Board held, and
 the majority affirms, that Abe discloses the trapezoidal “re-
 flecting wall” of claims 3 and 12 of the ’034 patent.
                               II
     In focusing solely on whether Abe discloses a “trapezoi-
 dal shape,” Maj. Op. at 13, the majority commits two errors.
 First, by focusing on whether Fig. 3 of Abe, on its face, gen-
 erally “discloses a trapezoidal shape,” id., the majority
 reads out the requirement that it is specifically the “verti-
 cal cross section of the reflecting wall” that must be in the
 shape of a trapezoid. J.A. 179 (italics added). Second, the
 majority fails to consider whether the Board’s finding that
 Abe discloses the “reflecting wall” of claims 3 and 12, which
 was not based on the mere existence of a “trapezoidal
 shape,” was actually supported by substantial evidence. It
 is not. For example, according to Sony, the “Board’s finding
Case: 19-1152      Document: 68    Page: 21    Filed: 02/25/2020




 4              COLLABO INNOVATIONS, INC. v. SONY CORPORATION




 was based on substantial evidence, in the form of Abe’s dis-
 closure and Mr. Guidash’s declaration.” Appellee’s Br. at
 61 (citing Abe at ¶¶ 44, 46, corresponding to J.A. 458, Abe
 at Fig. 3, corresponding to J.A. 462, and Guidash Decl. at
 ¶341, corresponding to J.A. 381). 1 The cited portions of
 both Abe and the Guidash Decl., however, deal solely with
 the upwardly inclining portions of light shielding film 9
 which, as mentioned above, is a non-trapezoidal “reflecting
 wall.” Abe and the Guidash Decl. are entirely silent on a
 light shielding film 9 / insulating film 14 combination re-
 sulting in a single trapezoidal “reflecting wall.” When
 pressed at the oral argument for any actual substantial ev-
 idence to support the Board’s finding that Abe discloses a
 trapezoidal “reflecting wall” comprising both light shield-
 ing film 9 and insulating film 14, counsel for Sony could
 only cite to paragraphs 38, 44, 48, and 49 of Abe. See, e.g.,
 Oral Arg. at 36:40–37:06; 26:50–37:06, http://oralargu-
 ments.cafc.uscourts.gov/default.aspx?fl=2019-1152.mp3.
 Again, these paragraphs only disclose the upwardly inclin-
 ing portions of light shielding film 9. The mere fact that
 the lateral walls of the three-walled light shielding film 9
 upwardly incline over the sensor parts 6, however, is not
 substantial evidence of a trapezoidal “reflecting wall” com-
 prising both light shielding film 9 and insulating film 14.
      While the Board and majority are correct that the
 claimed “reflecting walls” do not require a uniform compo-
 sition, and in fact are not uniform in Fig. 5 of the ’034 pa-
 tent, there is no suggestion in Abe that the alleged
 combination of light shielding film 9 and portions of, but
 not all of, insulating film 14 is, or can be used as, a



     1    Sony also argues that Collabo’s expert admitted
 that the identified structure is a trapezoid. However, Dr.
 Afromowitz appears to have admitted only that the struc-
 ture arbitrarily drawn by Sony in its petition, not any “re-
 flecting wall” shown in Fig. 3 of Abe, looks like a trapezoid.
Case: 19-1152    Document: 68      Page: 22     Filed: 02/25/2020




 COLLABO INNOVATIONS, INC. v. SONY CORPORATION                5



 “reflecting wall.” 2 Nor does Abe, or Mr. Guidash, 3 explain
 why a person of ordinary skill in the art (“POSITA”) at the
 time of the invention would find it necessary to arbitrarily
 combine the light shielding film 9 with portions of the in-
 sulating film 14 so as to form a trapezoidal “reflecting
 wall.” Indeed, it appears unlikely that a POSITA would
 find such a combination necessary, as light shielding film
 9, on its own, allows Abe to derive the same benefits as
 those achieved by the ’034 patent’s trapezoidal reflecting
 walls. Compare J.A. 457–58, Abe at ¶¶ 38, 44 (disclosing
 that “the upper extended portions 92 may be extended so
 as to incline upwardly from the upper ends of the lateral
 faces 9a of the second light shielding film 9” to more readily
 reflect “oblique light” towards the sensors) with J.A. 176,
 3:57–60 (“a cross section of the reflecting wall is a trapezoid
 whose upper base is longer than the lower base, whereby it
 is possible to cause the oblique light to be reflected toward
 the aperture more efficiently”).




     2    With respect to Fig. 5, the ’034 patent explicitly
 states that the combination of Tugsten W film 121 and Ti-
 tanium Ti film 122 (which are both reflective and not insu-
 lating) make up reflecting wall 62. See J.A. 178, 8:26–33.
 In Abe, to the contrary, there is no suggestion or disclosure
 of any structure formed through the combination of light
 shielding film 9 and insulating film 14.
      3   The Guidash declaration merely states that be-
 cause the upper extended portions 92 may be extended so
 as to incline upwardly, as discussed in Abe ¶ 44, Fig. 3 dis-
 closes that the vertical cross section of the reflecting wall
 is a trapezoid whose upper base is longer than a lower base.
 This is conclusory and belied by the fact that Abe discloses
 efficiently reflecting oblique light onto the sensor parts 6
 using a three-sided U-shaped light shielding film 9 by it-
 self, not a trapezoidal “reflecting wall.”
Case: 19-1152      Document: 68      Page: 23   Filed: 02/25/2020




 6              COLLABO INNOVATIONS, INC. v. SONY CORPORATION




      Even though Sony was unable to point to any substan-
 tial evidence supporting the Board’s finding, the majority
 finds substantial evidence in the mere existence of a “trap-
 ezoidal shape” in Fig. 3 of Abe. As previously discussed,
 however, the relevant inquiry is not whether Abe discloses
 a “trapezoidal shape,” but whether substantial evidence
 supports a finding that Abe discloses a trapezoidal “reflect-
 ing wall.” It is clear, on the record before us, that it does
 not.
                               III
     For the foregoing reasons, this court should reverse the
 Board’s finding of obviousness with respect to claims 3 and
 12 of the ’034 patent.
