       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                 IGNITE USA, LLC,
                     Appellant

                           v.

           CAMELBAK PRODUCTS, LLC,
                     Appellee
              ______________________

                      2016-2747
                ______________________

    Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2015-
01034.
                 ______________________

               Decided: October 12, 2017
                ______________________

    DAVID S. MORELAND, Meunier Carlin & Curfman,
LLC, Atlanta, GA, argued for appellant. Also represented
by STEPHEN M. SCHAETZEL.

   STEVEN MARC WILKER, Tonkon Torp LLP, Portland,
OR, argued for appellee. Also represented by ERIC BEACH,
DAVID S. D’ASCENZO, JON P. STRIDE.
                 ______________________
2                   IGNITE USA, LLC   v. CAMELBAK PRODS., LLC



    Before PROST, Chief Judge, WALLACH and TARANTO,
                     Circuit Judges.
WALLACH, Circuit Judge.
    Appellee CamelBak Products, LLC (“CamelBak”)
sought inter partes review of claims 1, 3, 6–7, and 10–15
(“the Asserted Claims”) of Appellant Ignite USA, LLC’s
(“Ignite”) U.S. Patent No. 8,863,979 (“the ’979 patent”). 1
The U.S. Patent and Trademark Office’s (“USPTO”)
Patent Trial and Appeal Board (“PTAB”) issued a final
written decision finding claims 1, 3, 6, and 10–15 antici-
pated by International Publication No. WO 2005/115204
A1 (“Oosterling”) (J.A. 765–85) and claim 7 obvious over
Oosterling. See CamelBak Prods., LLC v. Ignite USA,
LLC (CamelBak I), No. IPR2015-01034, 2016 WL
3227709, at *18 (P.T.A.B. June 7, 2016); see also Camel-
Bak Prods., LLC v. Ignite USA, LLC (CamelBak II), No.
IPR2015-01034, 2016 WL 7047969 (P.T.A.B. Sept. 30,
2016) (J.A. 1–8) (denying Ignite’s request for rehearing).
   Ignite appeals. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(4)(A) (2012). We affirm.



    1   The application that led to the ’979 patent is a
continuation-in-part of U.S. Patent Application Publica-
tion No. 13/610,406 (“the ’406 application”), which claims
the benefit of U.S. Provisional Patent Application Publica-
tion No. 61/534,192. A continuing patent application is
“an application filed subsequently to another application,
while the prior application is pending, disclosing all or a
substantial part of the subject-matter of the prior applica-
tion and containing claims to subject-matter common to
both applications, both applications being filed by the
same inventor or his legal representative.” U.S. Water
Servs., Inc. v. Novozymes A/S, 843 F.3d 1345, 1348 n.1
(Fed. Cir. 2016) (internal quotation marks and citation
omitted).
IGNITE USA, LLC   v. CAMELBAK PRODS., LLC                   3



                         BACKGROUND
                       I. The ’979 Patent
    Entitled “Seal Mechanism for Beverage Container,”
the ’979 patent relates “to a movable trigger/seal mecha-
nism for a beverage container.” ’979 patent col. 1 ll. 20–
21. “The seal assembly is rotatedly connected to the lid
housing and movable between a use position and a clean-
ing position.” Id., Abstract. “The trigger member is
connected to the lid housing and is capable of engaging
the seal assembly in the use position, but not in the
cleaning position.” Id.
     The ’979 patent has fifteen claims. Id. col. 11 l. 36–
col. 13 l. 14. Claims 1, 10, and 13 are the only independ-
ent claims. Id. col. 11 ll. 36–55 (claim 1), col. 12 ll. 32–48
(claim 10), col. 12 l. 57–col. 13 l. 8 (claim 13). Independ-
ent claim 1 is illustrative and recites:
    A lid assembly for a beverage container, compris-
    ing:
        a lid housing having a drink aperture;
        a seal arm connected to the lid housing
        and movable between a first position,
        wherein the seal arm is adjacent the drink
        aperture, and a second position, wherein
        the seal arm is distal the drink aperture,
        the seal arm being connected to the lid
        housing in the first position and the sec-
        ond position, the first position being an
        operable position for assisting in opening
        and closing the drink aperture, and the
        second position being a cleaning position
        wherein the drink aperture is open for
        cleaning the lid assembly and wherein the
        seal arm is not capable of assisting in clos-
        ing the drink aperture in the second posi-
        tion;
4                    IGNITE USA, LLC   v. CAMELBAK PRODS., LLC



        a drink seal connected to one of the drink
        aperture and the seal arm to assist in seal-
        ing the drink aperture; and,
        a trigger member connected to the lid
        housing, wherein the trigger member is
        capable of operating the seal arm in the
        first position, and wherein the seal arm
        cannot be operated by the trigger member
        in the second position.
Id. col. 11 ll. 36–55 (emphases added). Each of the As-
serted Claims teaches a seal arm or trigger member
“connected” to the lid housing or a drink aperture (“the
connected limitation”), either expressly or through its
attendant independent claim. See id. col. 11 ll. 60–62
(claim 3), col. 12 ll. 16–19 (claim 6), col. 12 ll. 20–22
(claim 7), col. 12 ll. 49–51 (claim 11), col. 12 ll. 52–56
(claim 12), col. 13 ll. 9–11 (claim 14), col. 13 ll. 12–14
(claim 15).
                        DISCUSSION
    Ignite contends that the PTAB erred by misconstruing
the connected limitation and finding claim 7 obvious over
Oosterling. 2 Appellant’s Br. 1–2. After articulating the


    2    In its opening brief, Ignite also argues that “the
[PTAB] erred in finding that Oosterling discloses a trigger
member ‘connected’ to the lid housing (regardless of how
‘connected’ is construed),” Appellant’s Br. 30 (capitaliza-
tion modified) (emphasis added), such that Oosterling
does not anticipate claims 1, 3, 6, and 10–15, see id. at 30–
38. However, at oral argument, Ignite confirmed that its
anticipation argument is conditioned upon its claim
construction argument.          Oral Arg. at 8:33–48,
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
16-2747.mp3 (“If a non-permanent connection is . . . a
proper construction, . . . then Oosterling shows a non-
IGNITE USA, LLC   v. CAMELBAK PRODS., LLC                  5



applicable standard of review, we address these argu-
ments in turn.
                     I. Standard of Review
     “We review the PTAB’s factual findings for substan-
tial evidence and its legal conclusions de novo.” Redline
Detection, LLC v. Star Envirotech, Inc., 811 F.3d 435, 449
(Fed. Cir. 2015) (citation omitted). “Substantial evidence
is something less than the weight of the evidence but
more than a mere scintilla of evidence,” meaning that “[i]t
is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” In re NuVa-
sive, Inc., 842 F.3d 1376, 1379–80 (Fed. Cir. 2016) (inter-
nal quotation marks and citations omitted). If two
“inconsistent conclusions may reasonably be drawn from
the evidence in record, [the PTAB]’s decision to favor one
conclusion over the other is the epitome of a decision that
must be sustained upon review for substantial evidence.”
In re Cree, Inc., 818 F.3d 694, 701 (Fed. Cir. 2016) (inter-
nal quotation marks and citation omitted).
                    II. Claim Construction
                       A. Legal Standard
    The PTAB gives “[a] claim . . . its broadest reasonable
construction in light of the specification of the patent in



permanent connection.”). Because we hold that the PTAB
properly construed the connected limitation, see infra
Section II.B, we do not separately address Ignite’s condi-
tional argument regarding anticipation, see GraftTech
Int’l Holdings, Inc. v. Laird Techs., Inc., 652 F. App’x 973,
983 (Fed. Cir. 2016) (“Because we conclude that the PTAB
did not err in its construction of [the disputed limitation],
we need not address [the appellant]’s conditional argu-
ments as to the PTAB’s [invalidity] determinations.”
(footnote omitted)).
6                   IGNITE USA, LLC   v. CAMELBAK PRODS., LLC



which it appears.” 37 C.F.R. § 42.100(b) (2016). A specifi-
cation “includes both the written description and the
claims” of the patent. In re Packard, 751 F.3d 1307, 1320
n.11 (Fed. Cir. 2014). A patent’s specification, together
with its prosecution history, 3 constitutes intrinsic evi-
dence to which the PTAB gives priority when it construes
claims. See Microsoft Corp. v. Proxyconn, Inc., 789 F.3d
1292, 1297–98 (Fed. Cir. 2015). We review the PTAB’s
assessment of the intrinsic evidence de novo. See id. If
the intrinsic evidence does not assign or suggest a partic-
ular definition to a claim term, the PTAB may rely upon
extrinsic evidence (like dictionary definitions) to construe
a claim. See id. “We review underlying factual determi-
nations concerning extrinsic evidence for substantial
evidence and the ultimate construction of the claim de
novo.” In re Cuozzo Speed Techs., LLC, 793 F.3d 1268,
1280 (Fed. Cir. 2015) (citation omitted), aff’d sub nom.,
Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131 (2016).
          B. The PTAB Properly Construed the
                 Connected Limitation
     The PTAB concluded that “‘connected’ does not re-
quire a permanent connection and does not require that
the connection ‘prevent the component from being mis-
placed or disassociated from the lid assembly in both the
operable and cleaning positions,’ as [Ignite] ar-
gues. . . . Rather, ‘connected’ includes non-permanent
connections.” CamelBak I, 2016 WL 3227709, at *5
(citation omitted). Ignite maintains that the connected
limitation should have been construed as “a connection


    3  A patent’s prosecution history “consists of the
complete record of the proceedings before the [US]PTO,”
which provides “evidence of how the [US]PTO and the
inventor understood the patent.” Phillips v. AWH Corp.,
415 F.3d 1303, 1317 (Fed. Cir. 2005) (en banc) (citations
omitted).
IGNITE USA, LLC   v. CAMELBAK PRODS., LLC                      7



that prevents the component from being misplaced or
disassociated from the lid assembly in both the operable
and cleaning positions.” Appellant’s Br. 30; see id. at 21–
30; J.A. 263–64. We agree with the PTAB that the con-
nected limitation includes non-permanent connections.
     The ’979 patent’s claims and specification teach that
the connected limitation includes non-permanent connec-
tions. Claims 1, 11, and 13 each recite “a drink seal
connected to one of a drink aperture and the seal arm to
assist in sealing the drink aperture.” ’979 patent col. 11
ll. 50–51 (claim 1), col. 12 ll. 49–51 (claim 11), col. 13 ll. 7–
8 (claim 13). However, figures 10–11 clearly depict drink
seals that are disconnected from the drink apertures
while the drink container is in the “open position.” See id.
figs.10–11, col. 3 ll. 60–63. Moreover, the specification
teaches that “[t]he locking member portion . . . of the
trigger member . . . is moveable radially inwardly and
outwardly on the trigger member . . . when the trigger
member . . . is connected to the lid housing.” Id. col. 10
ll. 50–54 (emphasis added). The specification’s use of
“when” indicates that the trigger member is not always
connected to the lid housing, such that the connection is
non-permanent.
    The prosecution history further confirms that the
connected limitation includes non-permanent connections.
Under certain circumstances, the prosecution history of a
parent patent application may inform the construction of
the claims of the continuations of the parent application.
See Ormco Corp. v. Align Tech., Inc., 498 F.3d 1307, 1314
(Fed. Cir. 2007) (explaining that “the prosecution history
can often inform the meaning of the claim language by
demonstrating how the inventor understood the invention
and whether the inventor limited the invention in the
course of prosecution” and that “statements [involving
prosecution disclaimer] in [a] familial application are
relevant in construing the claims at issue”). Here, the
’406 application, the application from which the ’979
8                    IGNITE USA, LLC   v. CAMELBAK PRODS., LLC



patent is a continuation-in-part, originally recited a “seal
assembly rotatedly connected to the lid housing and
movable between a first or operable position, and a second
or cleaning position.” J.A. 1082 (emphasis added). How-
ever, the examiner suggested the claims be amended to
replace “and” with “while” to avoid an anticipation deter-
mination, because “the use of the word AND does not
require tha[t] the seal assembly always be connected to the
lid housing, while the use of the word WHILE would
require the seal assembly and lid housing to maintain a
connection while moving between the first and second
position.” J.A. 967 (emphasis added). Because the ’979
patent’s allowed claims likewise use the “lid housing and
movable” language, e.g., ’979 patent col. 11 l. 38, it follows
that the Asserted Claims “do[] not require tha[t] the seal
assembly always be connected to the lid housing,”
J.A. 967.
    Ignite’s counterargument is unavailing. Ignite posits
that “[t]he ’979 patent is . . . explicit that when the patent
recites that the seal arm and trigger member are ‘con-
nected to the lid assembly,’ they are connected ‘at all
times’ such that they ‘cannot be misplaced or disassociat-
ed from the lid assembly.’” Appellant’s Br. 23 (quoting
’979 patent col. 4 ll. 38–39, 40–41, 44–45). However, the
portions of the specification that Ignite quotes explicitly
describe “a preferred embodiment,” ’979 patent col. 4 l. 25,
and “we have repeatedly warned against confining the
claims to th[e] embodiments” in a patent’s specification,
Phillips, 415 F.3d at 1323. Indeed, the ’979 patent’s
specification is clear that it “is not intended to limit the
broad aspect of the invention to the embodiments illus-
trated.” Id. col. 4 ll. 11–12.
    The intrinsic record supports construing the connect-
ed limitation to include non-permanent connections; thus,
“we need not consider the [PTAB]’s findings on th[e
extrinsic] evidence.” Microsoft, 789 F.3d at 1297. Be-
cause the PTAB properly applied the broadest reasonable
IGNITE USA, LLC   v. CAMELBAK PRODS., LLC                9



construction of the connected limitation, we decline to
narrow the limitation in accordance with Ignite’s prof-
fered construction.
                       III. Obviousness
                       A. Legal Standard
    A patent claim is invalid “if the differences between
the subject matter sought to be patented and the prior art
are such that the subject matter as a whole would have
been obvious at the time the invention was made to a
person having ordinary skill in the [relevant] art
[(‘PHOSITA’)].” 35 U.S.C. § 103(a) (2006). 4 Obviousness
is a question of law based on underlying findings of fact.
See In re Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000).
Those underlying findings of fact include (1) “the scope
and content of the prior art,” (2) “differences between the
prior art and the claims at issue,” (3) “the level of ordi-
nary skill in the pertinent art,” and (4) the presence of
objective indicia of nonobviousness such “as commercial
success, long felt but unsolved needs, failure of others,”
and unexpected results. Graham v. John Deere Co. of
Kan. City, 383 U.S. 1, 17 (1966); see United States v.
Adams, 383 U.S. 49, 50–52 (1966). In assessing the prior
art, the PTAB also “consider[s] whether a PHOSITA
would have been motivated to combine the prior art to
achieve the claimed invention.” In re Warsaw Orthopedic,



    4   Congress amended § 103 when it enacted the
Leahy-Smith America Invents Act (“AIA”). Pub. L. No.
112-29, § 3(b)(1), 125 Stat. 284, 285–87 (2011). However,
because the application that led to the ’979 patent has
never contained (1) a claim having an effective filing date
on or after March 16, 2013, or (2) a reference under 35
U.S.C. §§ 120, 121, or 365(c) to any patent or application
that ever contained such a claim, the pre-AIA § 103
applies. See id. § 3(n)(1), 125 Stat. at 293.
10                   IGNITE USA, LLC   v. CAMELBAK PRODS., LLC



Inc., 832 F.3d 1327, 1333 (Fed. Cir. 2016) (internal quota-
tion marks, brackets, and citation omitted).
      B. Substantial Evidence Supports the PTAB’s
        Determination That Claim 7 Would Have
             Been Obvious Over Oosterling
    Claim 7 recites “[t]he lid assembly of claim 1, wherein
the seal arm can pivot approximately 90[ degrees] to
transition from the first or operable position to the second
or cleaning position.” ’979 patent col. 12 ll. 20–22. The
PTAB determined that “it would have been obvious to a
[PHOSITA] to have modified Oosterling to provide a seal
arm that can pivot approximately 90 degrees to transition
from the first position to the second position.” CamelBak
I, 2016 WL 3227709, at *16. Ignite contends that Ooster-
ling could not be modified to provide a seal arm that can
pivot 90 degrees and that a PHOSITA would not have
been motivated to make this modification. See Appel-
lant’s Br. 42–56. We disagree.
     Substantial evidence supports the PTAB’s conclusion.
Oosterling “relates to a closable drinking beaker compris-
ing a beaker . . . having a side and a bottom, a lid . . . ,
means . . . for sealingly fastening the lid to the beak-
er . . . , with a drinking nozzle . . . and a valve . . . for
closing the drinking nozzle . . . on the lid.” J.A. 765.
Although it is undisputed that “Oosterling does not ex-
pressly disclose that the seal arm rotates 90 degrees,”
J.A. 118, the PTAB relied upon the testimony of Camel-
Bak’s expert that “it would have been obvious to [a
PHOSITA] to modify the lid . . . in Oosterling to allow the
lever . . . to pivot approximately 90 degrees when transi-
tioning from the first (operable) position to the second
(cleaning) position,” which would “allow increased clean-
ing access to the lever” and “prevent the action of the
dishwasher spray from inadvertently closing the lever,”
CamelBak I, 2016 WL 3227709, at *14 (quoting J.A. 874).
The PTAB further relied upon CamelBak’s expert’s
IGNITE USA, LLC   v. CAMELBAK PRODS., LLC               11



statement that the modification “could be accomplished in
a multitude of ways that would have been obvious design
choices and well known to [a PHOSITA], including in-
creasing the width of the opening . . . and changing the
shape or size of the spring.” Id. (quoting J.A. 874). After
thoroughly analyzing each of Ignite’s counterarguments,
see id. at *14–16, the PTAB then determined that Ignite
“ha[d] not rebutted persuasively” CamelBak’s explanation
of “how the proffered modification of Oosterling based on
knowledge of a [PHOSITA] renders obvious the subject
matter of claim 7” or the “rationales for such a modifica-
tion,” id. at *16; see J.A. 2–8 (providing further explana-
tion of why Ignite’s arguments were unavailing).
Therefore, the PTAB “adopted [CamelBak’s reasoning] as
[its] own.” CamelBak I, 2016 WL 3227709, at *16.
    The PTAB’s obviousness analysis primarily consists of
summaries and rejections of Ignite’s arguments, which
usually is insufficient to support a legal conclusion of
obviousness. See Icon Health & Fitness, Inc. v. Strava,
Inc., 849 F.3d 1034, 1046 (Fed. Cir. 2017) (“[T]he PTAB
cannot satisfactorily make a factual finding and explain
itself by merely summarizing and rejecting arguments
without explaining why it accepts the prevailing argu-
ment.” (internal quotation marks, alterations, and cita-
tion omitted)). However, the PTAB also explained that it
found CamelBak’s arguments and supporting evidence
more persuasive. CamelBak I, 2016 WL 3227709, at *16.
While “[u]ndoubtedly, it would be preferable for the PTAB
to provide its own reasoned explanation” rather than
adopt CamelBak’s explanation of the modification to
Oosterling, “we can discern” that the PTAB found the
quoted testimony of CamelBak’s expert persuasive. Icon,
849 F.3d at 1045. “This is sufficient, if minimally, to
explain the connection between the [PTAB]’s factual
findings [on the modification to Oosterling] and legal
conclusion” of obviousness. Id.; see Redline, 811 F.3d at
12                  IGNITE USA, LLC   v. CAMELBAK PRODS., LLC



454 (upholding findings regarding motivation to combine
based on expert testimony).
    Ignite’s counterarguments are unpersuasive. Ignite’s
principal contention is that the PTAB improperly relied
upon evidence submitted by CamelBak and disregarded
evidence submitted by Ignite. See Appellant’s Br. 42–50
(addressing the parties’ evidence regarding the modifica-
tions to Oosterling), 50–56 (addressing the parties’ evi-
dence on motivation to modify Oosterling). However,
“[w]e may not reweigh this evidence on appeal” and,
accordingly, we decline to do so. Warsaw, 832 F.3d at
1333.
    Ignite also avers that the PTAB improperly shifted
the burden of persuasion to Ignite “to come forward and
disprove the allegedly ‘obvious’ modification to Ooster-
ling.” Appellant’s Br. 38; see id. at 38–42. Ignite supports
its position by selectively quoting the PTAB’s considera-
tion and rejection of Ignite’s counterarguments. See id. at
40–41. However, the PTAB did not simply reject Ignite’s
counterarguments; it also concluded that “it would have
been obvious to [a PHOSITA] to have modified Oosterling
to provide a seal arm that can pivot approximately 90
degrees to transition from the first position to the second
position,” CamelBak I, 2016 WL 3227709, at *16, and
supported that conclusion with expert testimony, see id.
at *14 (quoting J.A. 874). Contrary to Ignite’s assertions,
explaining why a party’s arguments are not persuasive
does not constitute improper burden shifting.
                       CONCLUSION
    We have considered Ignite’s remaining arguments
and find them unpersuasive. Accordingly, the Final
Written Decision of the U.S. Patent and Trademark
Office’s Patent Trial and Appeal Board is
                       AFFIRMED
