Case: 19-1935   Document: 56    Page: 1   Filed: 06/26/2020




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                B/E AEROSPACE, INC.,
                      Appellant

                           v.

                  C&D ZODIAC, INC,
                        Appellee
                 ______________________

                  2019-1935, 2019-1936
                 ______________________

     Appeals from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in Nos. IPR2017-
 01275, IPR2017-01276.
                  ______________________

                 Decided: June 26, 2020
                 ______________________

     MORGAN CHU, Irell & Manella LLP, Los Angeles, CA,
 for appellant. Also represented by MICHAEL RICHARD
 FLEMING.

    JOHN C. ALEMANNI, Kilpatrick Townsend & Stockton
 LLP, Raleigh, NC, for appellee. Also represented by
 MICHAEL T. MORLOCK, DAVID A. REED, Atlanta, GA;
 STEVEN MOORE, San Francisco, CA; ANDREW WILLIAM
 RINEHART, Winston-Salem, NC.
                ______________________
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 2                      B/E AEROSPACE, INC.   v. C&D ZODIAC, INC



     Before LOURIE, REYNA, and HUGHES, Circuit Judges.
 REYNA, Circuit Judge.
     B/E Aerospace, Inc. appeals a final written decision of
 the Patent Trial and Appeal Board that found certain
 claims of B/E’s aircraft lavatory-related patents obvious.
 B/E contends that the Board’s decision is erroneous be-
 cause the Board incorporated a claim limitation that is not
 present in the prior art. B/E also contends that the Board
 erred by relying on printed matter that does not qualify as
 prior art under 35 U.S.C. § 311(b). We conclude that the
 Board’s final determination of obviousness is correct, and
 we do not reach the § 311(b) issue. On that basis we affirm
 the Board’s final written decision.
                        BACKGROUND
     This appeal arises from an inter partes review (“IPR”)
 proceeding. Petitioner, C&D Zodiac, Inc. (“Zodiac”), chal-
 lenged two patents owned by B/E Aerospace, Inc. (“B/E”),
 U.S. Patent No. 9,073,641 (“the ’641 patent”) and U.S. Pa-
 tent No. 9,440,742 (“the ’742 patent”) (collectively, “the
 challenged patents”).
     The technology involved in this appeal is simple. The
 challenged patents relate to space-saving technologies for
 aircraft enclosures such as lavatory enclosures, closets, and
 galleys. C&D Zodiac, Inc. v. B/E Aerospace, Inc., No.
 IPR2017-01275 at 4 (P.T.A.B. Oct. 23, 2018). Each patent
 contains a two-page written description that teaches an en-
 closure with contoured walls designed to “reduce or elimi-
 nate the gaps and volumes of space required between
 lavatory enclosures and adjacent structures.” ’641 patent
 at 1:52–56. In other words, the patents are directed to
 space-saving modifications to the walls of aircraft enclo-
 sures; they are not directed to the structures contained
 within those walls. Id.; see IPR2017-01275 at 15.
     The parties agree that, for purposes of this appeal, the
 challenged patents and claims are not materially different
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 B/E AEROSPACE, INC.   v. C&D ZODIAC, INC                       3



 and that claim 1 of the ’641 patent is representative of the
 challenged claims.
     Claim 1 of the ’641 patent provides:
        1. An aircraft lavatory for a cabin of an aircraft of
    a type that includes a forward-facing passenger seat
    that includes an upwardly and aftwardly inclined
    seat back and an aft-extending seat support dis-
    posed below the seat back, the lavatory comprising:
    a lavatory unit including a forward wall portion and
        defining an enclosed interior lavatory space, said
        forward wall portion configured to be disposed
        proximate to and aft of the passenger seat and
        including an exterior surface having a shape that
        is substantially not flat in a vertical plane; and
    wherein said forward wall portion is shaped to sub-
      stantially conform to the shape of the upwardly
      and aftwardly inclined seat back of the passenger
      seat, and includes a first recess configured to re-
      ceive at least a portion of the upwardly and
      aftwardly inclined seat back of the passenger
      seat therein, and further includes a second re-
      cess configured to receive at least a portion of the
      aft-extending seat support therein when at least
      a portion of the upwardly and aftwardly inclined
      seat back of the passenger seat is received within
      the first recess.
 ’641 patent at 4:63–5:17 (emphases added).
     This appeal focuses on the “first recess” and “second re-
 cess” limitations, labeled as elements 34 and 100, respec-
 tively, in Figure 2 below.
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 4                        B/E AEROSPACE, INC.   v. C&D ZODIAC, INC




 ’641 patent at Fig. 2.
                           A. Prior Art
      Zodiac’s petition asserted two grounds of unpatentabil-
 ity. The Board instituted on both grounds. During the pro-
 ceeding, Zodiac requested a partial adverse judgment,
 which the Board granted. This left only one instituted
 ground: that the challenged claims were obvious over the
 so-called “Admitted Prior Art” and U.S. Patent No.
 3,738,497 (“Betts”).
     In its petition, Zodiac defined the “Admitted Prior Art”
 as certain portions of the challenged patents, including Fig-
 ure 1. See ’641 patent at 1:65–67. As shown below, Fig-
 ure 1 of the Admitted Prior Art discloses a flat, forward-
 facing lavatory wall immediately behind a passenger seat
 that has a rear seat leg extending toward the back of the
 plane (referred to as an “aft-extending seat support”).
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 limitation. Id. at 17 (citing Betts at 2:19–24). 1 The Board
 also found that skilled artisans (airplane interior design-
 ers) would have been motivated to modify the flat forward-
 facing wall of the lavatory in the Admitted Prior Art with
 Betts’s contoured, forward-facing wall because skilled arti-
 sans were interested in adding space to airplane cabins,
 and Betts’s design added space by permitting the seat to be
 moved further aft. Id. at 14–17.
     The Board found that a skilled artisan would have
 found it “obvious to further modify the Admitted Prior
 Art/Betts combination to include the ‘second recess’ to re-
 ceive passenger seat supports.” Id. at 22. The Board used
 two separate approaches presented by Zodiac to reach that
 conclusion. 2
      First, Zodiac argued that “the logic of using a recess to
 receive the seat back applies equally to using another re-
 cess to receive the aft extending seat support.” Id. At 18.
 The Board found Zodiac’s arguments and testimony “cred-
 ible and convincing.” Id. at 22. The Board agreed with Zo-
 diac that creating a recess in the wall to receive the seat
 support was an obvious solution to a known problem. The
 Board relied on the testimony of Zodiac’s expert, Mr. An-
 derson, who opined that the addition of a second recess “is
 nothing more than the application of a known technology
 (i.e., Betts) for its intended purpose with a predictable re-
 sult (i.e., to position the seat as far back as possible). Id. at
 18, 23. Mr. Anderson explained that a skilled artisan
 “would be motivated to modify an enclosure, such as a lav-
 atory, to include a second recess to receive aft facing seat
 supports”; that this “modification is nothing more than the


     1   B/E does not challenge the Board’s finding that
 Betts teaches the “first recess” limitation.
     2   The Board stated that it reached its obviousness
 conclusion through a “traditional approach” and a “com-
 mon sense” approach. J.A. 156 n.1.
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 B/E AEROSPACE, INC.   v. C&D ZODIAC, INC                     7



 application of known technology for its intended purpose”;
 and that the “result of such a modification is predictable,
 allowing the seat to be positioned further aft in an aircraft.”
 J.A. 1850 ¶ 191; see also IPR2017-01275 at 23, 26.
     Second, the Board found that Zodiac “established a
 strong case of obviousness based on the Admitted Prior Art
 and Betts, coupled with common sense and the knowledge
 of a person of ordinary skill in the art.” IPR2017-01275 at
 34. Relying on the testimony of Mr. Anderson, the Board
 found that recesses configured to receive seat supports
 “were known in the art” and that “it would have been a
 matter of common sense” to incorporate a second recess in
 the Admitted Prior Art/Betts combination. Id. at 26.
                       C. Design Drawings
     Zodiac attached to its petition three “design drawings”
 that undisputedly depict “enclosures that include a lower
 recess to receive a seat support,” i.e., a “second recess.”
 Id. at 19. Zodiac did not identify these design drawings as
 prior art references for any of the enumerated grounds of
 unpatentability. Instead, Zodiac asserted the drawings as
 evidence that lower recesses to receive a seat support were
 “known in the art.” Id. at 21.
     B/E moved to exclude the design drawings and the re-
 lated testimony on the basis that Zodiac had not shown
 that the drawings were “patents” or “printed publications”
 within the meaning of 35 U.S.C. § 311(b). J.A. 513–18.
 Section 311(b) provides that, in an IPR proceeding, claims
 may be cancelled as unpatentable only on the basis of prior
 art consisting of “patents or printed publications.”
     The Board denied the motion to exclude. IPR2017-
 01275 at 22–23, 40–41. The Board determined that two of
 the designs, the SAS MD-90 and the 737 Storage, were in
 public use or on sale prior to the critical date of the chal-
 lenged patents. Id. But the Board explained that it con-
 sidered the design drawings only for the purpose of
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 “identify[ing], specifically, the knowledge of those skilled in
 the art.” Id. at 24. When used for those purposes, the
 Board explained, the drawings “need not be ‘printed publi-
 cation’ prior art.” Id. at 41-42; see also id. at 24.
     B/E requested a rehearing of the Board’s determination
 regarding the design drawings. B/E argued that the Board
 “misapprehended and/or overlooked the statute defining
 the scope of IPRs, 35 U.S.C. § 311(b).” J.A. 652. B/E argued
 that the design drawings and the related testimony “fall[]
 outside the scope of IPRs, which are instituted only on the
 basis of prior art consisting of patents or printed publica-
 tions.’’ Id. B/E also challenged the Board’s reliance on
 “common sense” in finding obviousness. The Board denied
 the request for rehearing.
     B/E timely appealed.       We have jurisdiction under
 28 U.S.C. § 1295(a)(4)(A).
                           ANALYSIS
     We review final written decisions of the Board in ac-
 cordance with the Administrative Procedure Act, 5 U.S.C.
 § 706(2) (2012). HTC Corp. v. Cellular Commc’ns Equip.,
 LLC, 877 F.3d 1361, 1367 (Fed. Cir. 2017). Obviousness is
 a question of law with underlying factual findings relating
 to the scope and content of the prior art; differences be-
 tween the prior art and the claims at issue; the level of or-
 dinary skill in the pertinent art; the presence or absence of
 a motivation to combine or modify prior art with a reason-
 able expectation of success; and any objective indicia of
 non-obviousness. Acoustic Tech., Inc. v. Itron Networked
 Sols., Inc., 949 F.3d 1366, 1373 (Fed. Cir. 2020). We review
 de novo the Board’s legal conclusions of obviousness and its
 factual findings for substantial evidence. HTC Corp. v. Cel-
 lular Commc’ns Equip., LLC, 877 F.3d 1361, 1369 (Fed.
 Cir. 2017). Substantial evidence is “such relevant evidence
 as a reasonable mind might accept as adequate to support
 a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197,
 229 (1938). We do not reweigh evidence on appeal. Impax
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 B/E AEROSPACE, INC.   v. C&D ZODIAC, INC                     9



 Labs. Inc. v. Lannett Holdings Inc., 893 F.3d 1372, 1382
 (Fed. Cir. 2018).
     B/E raises two general issues on appeal. First, B/E ar-
 gues that the Board’s obviousness determination is errone-
 ous because it improperly incorporated a second recess
 limitation not disclosed in the prior art. Second, B/E con-
 tends that the Board erred by relying on the design draw-
 ings, which are not prior art “patents or printed
 publications” under 35 U.S.C. § 311(b).
                         A. Obviousness
     The Board found that Zodiac established a “strong case
 of obviousness.” We agree. There is no dispute that Betts’s
 contoured wall design meets the “first recess” claim limita-
 tion. Nor do the parties dispute that a skilled artisan
 would have been motivated to modify the Admitted Prior
 Art with Betts’s contoured wall because skilled artisans
 were interested in maximizing space in airplane cabins.
 IPR2017-01275 at 14–17. Only the “second recess” limita-
 tion is at issue.
     We find no error in the Board’s conclusion that—under
 both approaches it employed—“it would have been obvious
 to further modify the Admitted Prior Art/Betts combina-
 tion to include the claimed ‘second recess’ to receive pas-
 senger seat supports.” Id. at 22.
      First, we affirm the Board’s conclusion that the chal-
 lenged claims would have been obvious because modifying
 the Admitted Prior Art/Betts combination to include a sec-
 ond recess was nothing more than the predictable applica-
 tion of known technology. Id. at 23. The prior art yields a
 predictable result, the “second recess,” because a person of
 skill in the art would have applied a variation of the first
 recess and would have seen the benefit of doing so. KSR
 Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“The com-
 bination of familiar elements according to known methods
 is likely to be obvious when it does no more than yield
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 10                      B/E AEROSPACE, INC.   v. C&D ZODIAC, INC



 predictable results. . . . If a person of ordinary skill in the
 art can implement a predictable variation § 103 likely bars
 its patentability.”). The Board’s conclusion is supported by
 substantial evidence, namely the expert testimony of Mr.
 Anderson, who opined:
      [A] person of ordinary skill in the art would recog-
      nize that as a seat is moved further aft the seat sup-
      port necessarily is also moved further aft. As the
      seat is moved aft the feet of the seat support may
      come into contact with the lower section of the wall.
      Creating one or more recesses to accommodate what-
      ever portion(s) of the seat support that would contact
      the forward wall of the enclosure is the obvious solu-
      tion to this known problem.
 J.A. 1787 ¶ 74.
     Second, we also affirm the Board’s conclusion that the
 challenged claims would have been obvious because “it
 would have been a matter of common sense” to incorporate
 a second recess in the Admitted Prior Art/Betts combina-
 tion. IPR2017-01275 at 26, 38. B/E asserts that the Board
 legally erred by relying on “an unsupported assertion of
 common sense” to “fill a hole in the evidence formed by a
 missing limitation in the prior art.” Appellant Br. 14. B/E
 argues that the Board acted contrary to our precedent in
 Arendi S.A.R.L. v. Apple Inc., 832 F.3d 1355, 1361 (Fed.
 Cir. 2016), because the Board failed to provide a “reasoned
 explanation and record evidence to support its position.”
 Id. at 25. We disagree.
     In KSR, the Supreme Court opined that common sense
 serves a critical role in determining obviousness. 550 U.S.
 at 421. As the Court explained, common sense teaches that
 familiar items may have obvious uses beyond their primary
 purposes, and in many cases a person of ordinary skill will
 be able to fit the teachings of multiple patents together like
 pieces of a puzzle. Id. (“A person of ordinary skill is also a
 person of ordinary creativity, not an automaton.”). The
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 B/E AEROSPACE, INC.   v. C&D ZODIAC, INC                   11



 Court held that “rules that deny factfinders recourse to
 common sense” are inconsistent with our case law. Id.
     After KSR, we recognized that courts must “consider
 common sense, common wisdom, and common knowledge
 in analyzing obviousness.” Arendi, 832 F.3d at 1361. How-
 ever, we cautioned that common sense cannot be used as a
 “wholesale substitute for reasoned analysis and eviden-
 tiary support, especially when dealing with a limitation
 missing from the prior art references specified.” Id. at
 1362. Likewise, in Perfect Web Techs, Inc. v. InfoUSA, Inc.,
 we reiterated that “[c]ommon sense has long been recog-
 nized to inform the analysis of obviousness if explained
 with sufficient reasoning.” 587 F.3d 1324, 1328 (Fed. Cir.
 2009).
     Here, the Board’s invocation of common sense was
 properly accompanied by reasoned analysis and eviden-
 tiary support. The Board dedicated more than eight pages
 of analysis to the “second recess” limitation and relied on
 Mr. Anderson’s detailed expert testimony. IPR2017-01275
 at 21 (citing J.A. 1786–88 ¶¶ 74–75, J.A. 1849–50 ¶¶ 189–
 92). The Board noted Mr. Anderson’s opinion that a “per-
 son of ordinary skill in the art would recognize that as a
 seat is moved further aft the seat support necessarily is
 also moved further aft.” Id. (citing J.A. 1786–87 ¶¶ 74–75).
 The Board also cited Mr. Anderson’s opinion that “lower
 recesses were a well-known solution to provide space for
 seat supports where a recess for a seat back in the forward
 wall of the enclosure unit permitted the seat to be located
 further aft.” Id.; J.A. 1787–88 ¶ 75.
      In Perfect Web, we affirmed a district court’s invocation
 of common sense to supply a missing claim limitation. 587
 F.3d at 1338. The missing limitation was step D of steps
 A–D of a method for delivering a predetermined quantity
 of emails. Id. at 1328. The record showed that the tech-
 nology was simple and that “step (D) merely involves re-
 peating earlier steps” until success is achieved. Id. at 1330.
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 12                      B/E AEROSPACE, INC.   v. C&D ZODIAC, INC



 We also determined that the district court “adequately ex-
 plained its invocation of common sense.” Id.
     Here, just like in Perfect Web, the evidence shows that
 the technology of the claimed invention is simple. The pa-
 tents relate to contoured walls that “reduce or eliminate
 the gaps and volumes of space required between lavatory
 enclosures and adjacent structures.” ’641 patent at 1:52–
 56. See also IPR2017-01275 at 23 (rejecting B/E’s argu-
 ment that the enclosures at issue are quite complex); J.A.
 403. The missing claim limitation (the “second recess”) in-
 volves repetition of an existing element (the “first recess”)
 until success is achieved. IPR2017-01275 at 18 (reasoning
 that the logic of using a recess to receive the seat back ap-
 plies equally to using another recess to receive the aft ex-
 tending seat support).
    We find no error in the Board’s conclusion that a skilled
 artisan would have used common sense to incorporate a
 second recess in the Admitted Prior Art/Betts combination.
 We therefore affirm the Board’s obviousness conclusion un-
 der both of its approaches.
                      B. Design Drawings
     B/E asserts that the Board violated 35 U.S.C. § 311(b)
 by relying on the design drawings because they are neither
 patents nor printed publications. The Board, however, did
 not rely on the design drawings when it found the chal-
 lenged claims obvious. When the Board found the chal-
 lenged claims obvious under a “traditional obviousness
 approach,” it relied on expert testimony:
      While we found Petitioner’s common sense rationale
      persuasive, Petitioner’s argument and evidence, in-
      cluding the testimony of Petitioner’s expert, support
      the conclusion that the challenged claims are obvi-
      ous under a traditional obviousness approach that
      does not rely on the “common sense” rationale sup-
      ported by [the design drawings].
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 B/E AEROSPACE, INC.   v. C&D ZODIAC, INC                   13



 J.A. 156 n.1. Likewise, when the Board separately found
 the challenged claims obvious based on “common sense,” its
 conclusion did not rest on its consideration of those draw-
 ings:
    We concluded that Petitioner met [the Arendi com-
    mon sense] standard based not only on the citation
    to second recesses in the [design drawings], but also
    on the rationale and related analysis provided by Pe-
    titioner’s expert that we credited and found convinc-
    ing before addressing the public use/on sale
    references. We also credited the testimony of Peti-
    tioner’s expert that the proposed modification would
    have been predictable. Accordingly, because our
    analysis relied on the analysis and reasoning of Pe-
    titioner’s expert regarding why it would have been
    obvious and a matter of common sense to add a sec-
    ond recess, . . . [the design drawings] were instead
    used as further evidence in support of the common
    sense argument.
    ...
    Because we found the expert analysis credible apart
    from its reliance on the [design drawings], we need
    not reach whether supplying a missing limitation
    via a “common sense” argument, based solely on
    public uses/sales, runs afoul of § 311(b).
 J.A. 165–66, n.2.
     We agree that the Board’s obviousness conclusions are
 independently supported by “Petitioner’s argument and ev-
 idence, including the testimony of Petitioner’s expert.” J.A.
 156 n.1. The Board instituted on grounds supported by the
 Admitted Prior Art and Betts. The Board fully articulated
 its conclusion of obviousness, and we conclude that sub-
 stantial evidence supports the Board’s determination of ob-
 viousness independent of the design drawings.
 Accordingly, we need not reach the issues raised by B/E on
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 whether the Board ran afoul of § 311(b) by considering the
 design drawings.
                       CONCLUSION
     We have considered B/E’s other arguments and find
 them unpersuasive. For the reasons stated above, we af-
 firm the Board’s determination that claims 1, 3–10, and
 12–17 of U.S. Patent No. 9,073,641, and claims 8 and 10–
 16 of U.S. Patent No. 9,440,742, are invalid as obvious.
                       AFFIRMED
