       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

      SCHOELLER-BLECKMANN OILFIELD
             EQUIPMENT AG,
                 Appellant

                           v.

     CHURCHILL DRILLING TOOLS US, INC.,
                   Appellee
            ______________________

                      2016-1494
                ______________________

    Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2014-
00814.
                 ______________________

              Decided: November 9, 2016
               ______________________

   DAVID A. DILLARD, Lewis Roca Rothgerber Christie
LLP, Glendale, CA, for appellant. Also represented by
GREGORY S. LAMPERT.

   J. DAVID CABELLO, Blank Rome LLP, Houston, TX, for
appellee. Also represented by JAMES H. HALL, STEPHEN D.
ZINDA.
                  ______________________
2       SCHOELLER-BLECKMANN OILFIELD   v. CHURCHILL DRILLING
                                                    TOOLS US


        Before TARANTO, LINN, and STOLL, Circuit Judges.
LINN, Circuit Judge.
    Schoeller-Bleckmann      Oilfield     Equipment      AG
(“Schoeller”) appeals from a decision in an inter partes
review (“IPR”) of the United States Patent and Trade-
mark Office Patent Trial and Appeal Board (“Board”)
holding invalid as anticipated and obvious claims 13-15,
17, and 18 of Schoeller’s U.S. Patent No. 7,866,397 (“’397
patent”). Churchill Drilling Tools US, Inc. v. Schoeller-
Bleckmann Oilfield Equip. AG, IPR2014-00814 (P.T.A.B.
Oct. 9, 2015) (“Op.”). Because we see no reason to disturb
the claim construction of “ball-like portion,” we affirm the
Board’s decision of unpatentability of claims 17 and 18.
                       BACKGROUND 1
    The ’397 patent is directed to a mechanism for allow-
ing and restricting the flow of liquid through a drill string
to activate and deactivate a downhole tool.
     The ’397 patent includes several relevant embodi-
ments of its invention. The first, shown in Figures 1-5
uses a ball activator, which is dropped down the drill
string to land on a seat, which, in turn, restricts the flow
of fluid, and builds pressure above the seated ball. The
pressure builds until it is sufficient to slide the entire
sleeve down, exposing side ports to allow a flow of fluid.
This embodiment does not allow a return to the default
flow state.
     Another embodiment uses “a deformable activator in
the form of [a] ball-dart combination, which takes the
place of the large non-deformable ball 14.” ’397 patent,
col. 8, ll. 59-61. Figures 8 and 9 show such a deformable


    1   Because we write for the parties, familiarity with
the facts of the case is presumed.
SCHOELLER-BLECKMANN OILFIELD      v. CHURCHILL DRILLING      3
TOOLS US


activator, which can be “launched down the drill string to
engage a seat provided in the axially shiftable sleeve.”
Id., col. 6, ll. 34-40. This activator has “a ball-like portion
51 which engages the seat 13, and a dart-like portion 52
projecting downwardly therefrom.” Id., col. 8, ll. 64-65.
This mechanism may be deactivated by launching a set of
small non-deformable balls, which block the flow control
device, increasing pressure, which “eventually causes
downward movement (accompanied by sufficient inward
deformation of actuator 50) through the seat 13 and the
sleeve 12.” Id., col.9, ll. 36-38.
    A further embodiment is pictured in Figures 9a and
9b, which show deformable activators 50a and 50b. To
activate the bypass mode, a non-deformable ball blocks
the passageway through the center of the activator and
the slideable sleeve slides down the drill string to align
the bypass ports. To deactivate the bypass mechanism,
deactivating balls are launched, which further increases
pressure by blocking the bypass ports, until the pressure
deforms “the deformable portion 51 of the activator
[which] then yields under this load, thereby allowing the
entire activator to pass downwardly through the valve
seat.” Id., col.10, ll. 19-21.
    On May 23, 2014, Churchill filed a petition for IPR.
The Board instituted review as to claims 13-15, 17, and
18, as (1) anticipated by prior art WO 02/14650 A1,
PCT/GB01/03492 (published Feb. 21, 2002) (“WO
02/14650”); (2) anticipated by U.S. Patent No. 4,310,050
(“Bourgoyne”); and (3) obvious over a combination of both.
    After claim construction, the Board issued a final
written decision, holding claims 13-15, 17, and 18 un-
patentable on all three grounds.
    We have jurisdiction over an appeal from a final
decision in an IPR under 28 U.S.C. § 1295(a)(4)(A) and
35 U.S.C. § 319.
4       SCHOELLER-BLECKMANN OILFIELD   v. CHURCHILL DRILLING
                                                   TOOLS US


                        DISCUSSION
    Schoeller contests the Board’s claim construction 2 of
“ball-like portion” and contends that under a proper
construction of that term, claims 17 and 18 are neither
anticipated nor obvious. 3 Schoeller’s anticipation and
obviousness challenges regarding claims 17 and 18 are
dependent on its construction of the term “ball-like por-
tion.”
    We review the Board’s ultimate claim construction de
novo as an issue of law, and review any factual determi-
nations underlying its claim construction and based on
extrinsic evidence for substantial evidence. In re Cuozzo
Speed Techs., LLC, 793 F.3d 1268, 1279–80 (Fed. Cir.
2015) (citing Teva Pharm. USA, Inc. v. Sandoz, Inc., 135
S. Ct. 831, 841 (2015)), aff’d, Cuozzo Speed Techs., LLC v.
Lee, 136 S. Ct. 2131 (2016).
    Claim 17 depends from claim 13, and reads as follows,
with the limitations from claim 13 included in braces and
the terms at issue emphasized:
    17. {An activating mechanism for controlling the
    operation of a downhole tool and which comprises:


    2   Schoeller initially argued that the broadest rea-
sonable interpretation standard was not the proper
standard for claim construction in an IPR, but the Su-
preme Court has now definitively approved that standard,
Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2142
(2016).
    3   Schoeller does not appeal the Board’s construction
of “‘deformable activator’ in claim 13” or its “decision
cancelling claims 13-15.” Appellant’s Br. 1 n.1. Schoeller
does appeal the Board’s construction of “deformable” with
regard to claims 17 and 18, but for the reasons discussed
below, we need not, and do not, address that issue.
SCHOELLER-BLECKMANN OILFIELD      v. CHURCHILL DRILLING       5
TOOLS US


        a hollow main body adapted for mounting in a
        drill-string and through which fluid to the tool
        can be routed;
        an actuating sleeve defining a through-flow
        passage and slidably mounted in the main
        body for movement between positions corre-
        sponding to a through-flow mode and a by-
        pass mode of the mechanism;
        biasing means acting on the sleeve to urge it
        to its position corresponding to the through-
        flow mode of the mechanism;
        a seat providing access to said passage in the
        through-flow mode of the mechanism; and
        a deformable activator capable of being
        launched down the drill-string to engage the
        seat and thereby cause pressure upstream of
        the seat to increase so that the activator
        moves the sleeve to its position corresponding
        to the by-pass mode of the mechanism;
        in which the activator and the seat are ar-
        ranged to co-operate with each other, when
        the activator engages the seat, in such a way
        that restricted flow of fluid through the sleeve
        is maintained when the mechanism is in its
        by-pass mode;}
        [and] in which the deformable activator
        comprises a ball-dart combination, in
        which a ball-like portion at least is de-
        formable and is capable of seating on said
        seat, and a dart-like portion is capable of pro-
        jecting downwardly through the seat.
’397 patent, col. 15, ll. 22-44; id., col. 16, ll. 1-5. Claim 18
adds that “the activator is hollow and is provided with an
6     SCHOELLER-BLECKMANN OILFIELD        v. CHURCHILL DRILLING
                                                         TOOLS US


internal flow control device.” Id., col. 16, ll. 6-8. Claims
17 and 18 are not argued separately on appeal.
     The first disputed issue is whether the Board properly
construed “ball-like portion” in Claim 17 as “a structure
with at least one outer curve.” More concretely, the issue
is whether “ball-like portion” is limited to the “deformable
ring” 51 shown in Figures 8, 9, 9(a), and 9(b), or whether
it also encompasses a deformable ball.
    Schoeller argues that the ’397 patent exclusively uses
“ball-like” portion to refer to the deformable ring of the
ball-dart combination shown in Figures 8, 9, 9(a), and
9(b), and that when referring to an actual ball as used in
the embodiments shown in Figures 1-5, the specification
uniformly uses some variation of the term “ball.”
Schoeller particularly points to the following passages:
    FIG. 3b shows initiation of adjustment of the tool
    to its activated mode, which is caused by launch-
    ing activating ball 14 from the surface and down
    the drill string, to engage seat 13.
    ....
    FIGS. 8 and 9 are longitudinal sectional views of a
    deformable activator in the form of a ball-dart
    combination, which takes the place of the large
    non-deformable ball 14 described above. There is
    therefore shown in FIGS. 8 and 9 a deformable ac-
    tivator which is designated generally by reference
    50 having a ball-like portion 51 which engages the
    seat 13, and a dart-like portion 52 projecting
    downwardly therefrom. The ball-like portion 51
    engages the seat 13, and the dart-like projection
    52 projects downwardly therefrom and through
    the seat.
’397 patent, col. 8, ll. 1-4; id., col. 8, l. 59 through col. 9, l.
1 (emphasis added). Schoeller does not explain, however,
why the passage noted above with respect to Figures 8
SCHOELLER-BLECKMANN OILFIELD     v. CHURCHILL DRILLING     7
TOOLS US


and 9 is limiting. There is no doubt that the deformable
ring 51 shown in Figures 8, 9, 9(a), and 9(b) is “ball-like,”
but this does not necessarily indicate that “ball-like” is
thereby limited to a deformable ring. We have repeatedly
stated that it is inappropriate to construe claim terms as
limited to preferred embodiments without a clear intent
to redefine the term or a clear disavowal of claim scope.
See, e.g., Thorner v. Sony Comput. Entm’t Am. LLC, 669
F.3d 1362, 1365 (Fed. Cir. 2012).
    Relying on In re Abbott Diabetes Care, 696 F.3d 1142
(Fed. Cir. 2012), Schoeller argues that the ’397 patent
manifests an implicit definition of “ball-like” as excluding
a ball, and including only a ring that interacts in a par-
ticular way with the dart-like portion, namely by “forming
a seal at the outer circumference of the cylindrical dart.”
Appellant’s Br. 32. Schoeller argues that claim 17 re-
quires a particular interaction between a “ball-like por-
tion” and a “dart-like portion,” and that because those
terms are only used in reference to the components in
Figures 8, 9, 9(a), and 9(b), the claim must cover only that
particular interaction between the elements.
     Schoeller reads Abbott too broadly. In Abbott, the
claims themselves suggested the exclusion of wires from
the “electrochemical sensor” and the only discussion of
wires in the specification of the patents at issue was to
disparage their use in the prior art. Abbott, 696 F.3d at
1149. As we stated, “Abbott’s patents ‘repeatedly, con-
sistently, and exclusively’ depict[ed] an electrochemical
sensor without external cables or wires while simultane-
ously disparaging sensors with external cables or wires.”
Id. at 1150 (quoting Irdeto Access, Inc. v. Echostar Satel-
lite Corp., 383 F.3d 1295, 1303 (Fed. Cir. 2004)). The
same is not true of the instant ’397 patent, which does not
disparage the use of a deformable ball as a “ball-like”
portion.
8    SCHOELLER-BLECKMANN OILFIELD      v. CHURCHILL DRILLING
                                                     TOOLS US


    Similarly, in claiming the interaction between the
“ball-like” and the “dart-like” portions of the deformable
activator, claim 17 requires only that the “ball-like por-
tion at least is deformable and is capable of seating on
said seat,” and the “dart-like portion is capable of project-
ing downwardly through the seat.” ’397 patent, col. 16, ll.
3-5. The claim does not require or imply that the “ball-
like” portion form a seal on the outer circumference of the
dart.
    Moreover, the ’397 patent itself appears to allow a ball
as a species of the “ball-like portion”:
    Preferably, the deformable activator comprises a
    ball-dart combination, in which a ball-like por-
    tion at least is deformable and is capable of seat-
    ing on the seat, and a dart-like portion can project
    downwardly through the seat. A ball-dart combi-
    nation can readily be launched down a drill string,
    and with suitable weighting of the combination,
    the dart can pull the ball downwardly, under
    gravity, and with the dart eventually projecting
    downwardly through the seat and the “ball” en-
    gaging the seat.
’397 patent, col. 5, ll. 44-53 (emphasis added). Schoeller
attempts to parse the two sentences above as referring to
two different embodiments, relying on the use of the
indefinite article “a” instead of the definite article “the” in
the second sentence. This argument is inapposite—both
sentences are referring to the “deformable activator,” and
that portion of the specification is talking about generali-
ties and not particular embodiments. Schoeller also
argues that because the second mention of the word “ball”
is in quotes, this means that “ball” is referring to the
genus that includes both “actual balls” and “ball like-
portions.” We find this argument unconvincing, as it fails
to account for the first use of “the ball,” and is contrary to
SCHOELLER-BLECKMANN OILFIELD       v. CHURCHILL DRILLING        9
TOOLS US


the natural reading of “ball-like portion” as the genus of
both a ball and a ring.
     We also note that the ’397 patent repeatedly uses the
phrase “ring” or “deformable ring” to refer specifically to
element 51 in Figures 8, 9, 9(a), and 9(b). See ’397 patent,
col. 10, ll. 23-25 (“The deformable activators 50, 50a, 50b
disclosed herein effectively are a form of deformable dart,
and having an external resilient ring . . . .”); id., col. 10, ll.
27-28 (“[T]he deformable ring can shear under load . . . .”);
id., col. 10, ll. 30-31 (“The ring therefore forms a seal on
the outer circumference of the dart . . . .”). If the patentee
had wanted to limit the scope of claim 17 to those embod-
iments, the patentee had a narrow term readily available
from the specification.
    For these reasons, we affirm the Board’s construction
of “ball-like portion” under the broadest reasonable con-
struction standard as a “structure with at least one outer
curve.”
    Schoeller does not contest on appeal that claims 17
and 18 are anticipated by WO 02/14650 under the con-
struction affirmed above. The Board’s decision of un-
patentability of claims 17 and 18 is therefore affirmed on
that basis. We need not and do not address the Board’s
conclusions that Bourgoyne also anticipated claims 17
and 18, or that the combination of WO 02/14650 and
Bourgoyne rendered obvious claims 17 and 18. Finally,
we do not address the Board’s construction of “deforma-
ble,” which relates only to the Bourgoyne anticipation
issue we do not reach.


                         AFFIRMED
