       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                 ______________________

   IN RE: RANDY TAYLOR, BOBBY P. TAYLOR,
                   Appellants
             ______________________

                       2018-1958
                 ______________________

    Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. 14/096,000.
                  ______________________

                 Decided: May 22, 2019
                 ______________________

   CHARLENA THORPE, Incorporating Innovation LLC
With Charlena Thorpe, Patent Attorney, Duluth, GA, for
appellants.

   THOMAS W. KRAUSE, Office of the Solicitor, United
States Patent and Trademark Office, Alexandria, VA, for
appellee Andrei Iancu. Also represented by COKE MORGAN
STEWART, MONICA BARNES LATEEF, JOSEPH MATAL.
                 ______________________

    Before DYK, REYNA, and WALLACH, Circuit Judges.
PER CURIAM.
    Appellants Randy Taylor and Bobby P. Taylor (to-
gether, “Taylor”) appeal the decision on appeal of the U.S.
Patent and Trademark Office’s Patent Trial and Appeal
2                                              IN RE: TAYLOR



Board (“PTAB”). The PTAB found, inter alia, that claims
1–3 and 5–13 (“the Proposed Claims”) of Taylor’s U.S. Pa-
tent Application No. 2014/096,000 (“the ’000 application”)
(J.A. 40–49) were unpatentable as obvious. Ex Parte Tay-
lor, No. 2018-001093 (P.T.A.B. Jan. 22, 2018) (J.A. 2–20);
see J.A. 213–15 (Proposed Claims). We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(4)(A) (2012). We affirm.
                       BACKGROUND
                  I. The ’000 Application
    The ’000 application, entitled “Advertising Mat,” gen-
erally relates to a method of advertising comprised of plac-
ing pre-printed advertisements on an advertising mat and
placing the mat near a gas pump so that a customer “stand-
ing at the base of the gas pump may view the advertise-
ments on the mat while pumping gas.” J.A. 44; see J.A. 43–
44. The ’000 application discloses “a plurality of advertise-
ments,” J.A. 43, that “may include advertisements from
any business including local, non-local, wholesale, retail, or
any other business,” J.A. 43–44, and “may include one or
more advertisements having respective matrix barcodes (or
two-dimensional codes),” J.A. 44. “[T]he advertising mat
may be comprised of multiple layers,” including “a bottom
layer [that] may be a thin sheet of plastic, the middle layer
[that] may be comprised of a vinyl sheet, and the top layer
[that] may be a thin sheet of plastic which may have non-
skid properties.” J.A. 45.
    The ’000 application contains thirteen claims. See
J.A. 213–15. Relevant to this appeal are independent
claim 1, which is representative of dependent claims 5–9;
dependent claims 2–3, each of which depend from claim 1;
and independent claim 13. Claim 1 recites “[a] method of
advertising comprising: printing a plurality of advertise-
ments on an advertising mat wherein the advertisements
are from different businesses that are off the premise of the
gas pump; and placing the advertisement mat on the
ground at the base of a gas pump.” J.A. 213. Claim 2, in
IN RE: TAYLOR                                               3



turn, recites “[t]he method of claim 1, further comprising
determining existing businesses located within a predeter-
mined distance of the advertising mat, selecting retail busi-
nesses from the existing businesses, and printing on the
advertising mat advertisements for a predetermined num-
ber of the selected retail businesses.” J.A. 213. Claim 3
provides “[t]he method of claim 1, wherein at least one of
the advertisements includes a matrix barcode.” J.A. 213.
Claim 13 recites “[a] station comprising: a gas pump; and
an advertisement mat comprising pre-printed advertise-
ments located on the ground at the base of the gas pump
wherein the advertisements are from different businesses
that are off the premise of the gas pump.” J.A. 215.
                 II. The Relevant Prior Art
                          A. Potok
    Entitled “Advertising System and Method Utilizing
Floor Mat with Recessed Advertisement Panel, and
Method of Doing Business Using the Same,” U.S. Patent
Application No. 2007/0059480 A1 (“Potok”) (J.A. 337–49)
teaches “[a] floor advertising system and method that uti-
lizes a floor mat having a recessed area for receiving an
advertising panel.” J.A. 337. The intent of the claimed in-
vention is “to provide an improved floor advertising system
and method” that “affords the user the ability to change the
advertisement/message without replacing the entire floor
decal/mat.” J.A. 344. Potok describes “a floor mat [as] hav-
ing a bottom surface, a top surface, and a recessed area in
the top surface,” where “the recessed area ha[s] a depth,”
such that a panel having an advertisement printed on it
may be “positioned in the recessed area.” J.A. 337; see
J.A. 338 (providing, in Figure 1, a depiction of the advertis-
ing floor mat). This “affords [a] user the ability to change
the advertisement/message without replacing the entire
floor decal/mat.” J.A. 345; see J.A. 344. The top or bottom
surface of the floor mat can be “textured or otherwise
roughened to increase the friction coefficient,” J.A. 345,
4                                              IN RE: TAYLOR



such that it is safe and durable to use “on a variety of sur-
faces,” J.A. 344. Moreover, Potok discloses “a method of
doing business” by “identifying an advertiser that desires
to advertise in said store,” charging the advertiser for the
floor space, and placing “a panel having an advertisement
for the advertiser” in the floor mat. J.A. 344.
                         B. Graham
     Entitled “Coupon Book and Methods of Design and Use
Thereof,” U.S. Patent Application No. 2007/0094075 A1
(“Graham”) (J.A. 350–66) discloses the “design[] and gen-
erat[ion of] customized coupon books.” J.A. 350. Graham
is directed to the problem of coupon booklets “hav[ing] a
low perceived value with consumers,” due to distribution
methods, such as by “junk mail,” and to the lack of variety
of vendors found in coupon booklets. J.A. 356. Graham
teaches the categorization of coupons found in a “database
of coupon offers” and allows a user to search coupons using
pre-set search criteria, such as by location, so that a user
can “quickly narrow the coupons to those he/she desires in
the client’s booklet,” J.A. 357; see J.A. 363−64. Graham
also discloses the inclusion of “numerical mark-
ing[s,] . . . [which] can be coded to provide information con-
cerning the coupon such as but not limited to: (i) the
booklet the coupon was offered in; and (ii) the geographic
area in which the associated booklet was distributed.”
J.A. 357. Additionally, Graham “describe[s] a system for
designing and generating customized coupon booklets,” by
means of “modules and software scripts permitting a user
to choose each and every coupon to be included in the book.”
J.A. 357.
                        C. Edstrom
    Entitled “Electrical Static Discharge Method and Ap-
paratus,” U.S. Patent Application No. 2004/0257726 A1
(“Edstrom”) (J.A. 326–36) “relates generally to electrical
protection and safety,” specifically by “protecting areas
having volatile material from electrical static discharge
IN RE: TAYLOR                                               5



[(‘ESD’)].” J.A. 330. Edstrom discloses “[a]n [ESD] system
comprise[d of] a user-accessible subsystem (for example, a
first gasoline pump), a local ground, a resistor-fuse ele-
ment, and a main ground,” in which “[t]he local ground dis-
sipates a static electric charge from the user-accessible
subsystem.” J.A. 326. Relevant here, Edstrom teaches
that “the user-accessible subsystem includes a mat for a
person to stand upon,” and the “mat is located in front of
the first gasoline pump, such that a user attempting to use
the first gasoline pump will stand on the mat when dis-
pensing gasoline into a first motor vehicle.” J.A. 331–32.
                        DISCUSSION
        I. Standard of Review and Legal Standard
    “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). “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 ad-
equate to support a conclusion.” In re NuVasive, Inc., 842
F.3d 1376, 1380 (Fed. Cir. 2016) (internal 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 re-
view for substantial evidence.” Elbit Sys. of Am., LLC v.
Thales Visionix, Inc., 881 F.3d 1354, 1356 (Fed. Cir. 2018)
(internal quotation marks, brackets, and citation omitted).
    A claim is invalid “if the differences between the
claimed invention and the prior art are such that the
claimed invention as a whole would have been obvious be-
fore the filing date of the claimed invention to a person hav-
ing ordinary skill in the art [(‘PHOSITA’)] to which the
6                                               IN RE: TAYLOR



claimed invention pertains.” 35 U.S.C. § 103 (2012). 1 Ob-
viousness 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 ob-
jective 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. 39, 50–52 (1966). In assessing the prior art, the PTAB
also “consider[s] whether a PHOSITA would have been mo-
tivated to combine the prior art to achieve the claimed in-
vention and whether there would have been a reasonable
expectation of success in doing so.” In re Warsaw Orthope-
dic, Inc., 832 F.3d 1327, 1333 (Fed. Cir. 2016) (internal quo-
tation marks, brackets, and citation omitted).
II. The PTAB’s Obviousness Finding Is Supported by Sub-
                   stantial Evidence
                  A. Claims 1, 3, and 5–9
    The PTAB determined that claims 1, 3, and 5–9 were
unpatentable as obvious over Potok. See J.A. 4. With re-
spect to claim 1, which is representative of claims 5–9, the
PTAB determined that Taylor failed to rebut the conclu-
sion that “the act of placing advertising in any viewable lo-
cation in which a consumer spends any length of time [was]
old and well known long before the filing of [Taylor’s]



    1   Congress amended § 103 when it enacted the
Leahy-Smith America Invents Act (“AIA”). Pub. L. No.
112-29, § 3(c), 125 Stat. 284, 287. Because the ’000 appli-
cation contains a claim having an effective filing date on or
after March 16, 2013, the AIA applies. See id. § 3(n)(1), 125
Stat. at 293.
IN RE: TAYLOR                                                 7



invention,” J.A. 13–14, and that “which advertisements are
selected for display on that mat are inconsequential to the
method of printing content on the mat, and placing the mat
in front of a gas pump,” J.A. 15 (emphasis added); see
J.A. 13–15. With respect to claim 3, the PTAB determined
that the inclusion of the “‘matrix barcode’ [wa]s not posi-
tively recited as actually being used to change or affect the
manner of printing or placing or functioning of the adver-
tising mat.” J.A. 16. Taylor argues that, in light of Potok’s
“narrow[]” confines, Appellants’ Br. 25, the PTAB erred in
finding claim 1 obvious because the PTAB failed to provide
evidentiary support for its “broad conclusion” regarding the
long-running practice of placing advertisements in viewa-
ble, consumer-traveled locations, id. at 24. With respect to
claim 3, Taylor contends that the barcode “is critical to the
invention” as the “barcode would not achieve its advertis-
ing purposes without the mat and the mat would be unable
to produce the desired result without the advertisement.”
Id. at 28. We disagree with Taylor.
     Substantial evidence supports the PTAB’s determina-
tion that claims 1, 3, and 5–9 would have been obvious over
Potok. Potok teaches claim 1’s advertising floor mat. See
J.A. 213 (disclosing, in claim 1, the “printing [of] a plurality
of advertisements on an advertising mat wherein the ad-
vertisements are from different businesses that are off the
premise of the gas pump”), 337 (teaching, in Potok, “[a]
floor advertising system and method that utilizes a floor
mat having a recessed area for receiving an advertising
panel”). While Potok discloses the mat’s placement inside
of stores, J.A. 344 (“[T]he advertising of products is within
stores, including for example grocery stores, super mar-
kets, and retail stores.”), it conceptualizes the placement of
the advertising mat on the ground in consumer-traveled
areas, J.A. 344 (identifying floor advertising space as “ben-
eficial” because of its ability to “increase the advertising
space that can be utilized in stores and public spaces”). A
PHOSITA would have found it obvious to employ Potok’s
8                                             IN RE: TAYLOR



teachings in the ’000 application’s placement of the floor
mat on the ground around a gas pump, and, cognizably, at
a gas station. See KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 416 (2007) (“The combination of familiar elements ac-
cording to known methods is likely to be obvious when it
does no more than yield predictable results.” (emphasis
added)); see also J.A. 225 (concluding, in an examiner’s fi-
nal rejection, that Potok teaches the placement of the ad-
vertising mat in “consumer-traveled areas” and places “in
which a consumer spends any length of time, including a
gas pump”).
     Similarly, substantial evidence supports the determi-
nation that claim 3’s inclusion of a barcode on an advertise-
ment placed on the mat would have been obvious in view of
Potok. Claim 3’s inclusion of a barcode is nothing more
than another type of printed matter within an advertise-
ment that does not change the function of the claimed ad-
vertising mat. See In re Distefano, 808 F.3d 845, 851 (Fed.
Cir. 2015) (explaining that, under the printed matter doc-
trine, printed matter may only have patentable weight if
“it is functionally or structurally related to the associated
physical substrate”). Therefore, claims 1, 3, and 5–9 would
have been obvious over Potok.
    We are unpersuaded by Taylor’s contention that Potok
“teaches away or discourages from placing advertisements
outside at a gas pump because this would be away from
where the products are shelved.” Appellants’ Br. 32 (em-
phasis added). “A reference may be said to teach away
when a [PHOSITA], upon reading the reference, would be
discouraged from following the path set out in the refer-
ence, or would be led in a direction divergent from the path
that was taken by the applicant.” In re Urbanski, 809 F.3d
1237, 1244 (Fed. Cir. 2016) (internal quotation marks and
citation omitted).     Taylor fails to establish that a
PHOSITA, upon reading Potok, would be discouraged from
determining that its placement of advertising mats on the
ground in areas traversed by consumers would not reach
IN RE: TAYLOR                                             9



the ground surrounding gas pumps, as it is similarly a lo-
cation frequented by consumers and is located next to
goods available for purchase. See KSR, 550 U.S. at 401
(“When a work is available in one field, design incentives
and other market forces can prompt variations of it, either
in the same field or in another.”). There is no meaningful
difference between the inside and outside distinctions Tay-
lor draws in light of Potok’s broader disclosures, which ex-
plain the placement of advertising mats on “vacant floor
space of a store” and in “public places.” J.A. 344. See PGS
Geophysical AS v. Iancu, 891 F.3d 1354, 1366 (Fed. Cir.
2018) (determining that appellant failed to demonstrate
teaching away after concluding that it was “contemplated”
by the combination of prior art). Accordingly, Taylor’s
teaching away argument fails.
                        B. Claim 2
    The PTAB found claim 2 obvious over a combination of
Potok and Graham. See J.A. 18. Specifically, the PTAB
determined that Graham teaches the claimed steps of “de-
termining,” “selecting,” and “printing” advertisements for
a predetermined number of the selected businesses. J.A.
16. Taylor argues that Graham merely categorizes busi-
nesses and provides a function for sorting them, failing to
account for the selection of businesses “within a predeter-
mined distance from a location” and so fails to disclose all
of claim 2’s limitations. Appellants’ Br. 28–29. We disa-
gree with Taylor.
    Substantial evidence supports the PTAB’s finding that
dependent claim 2 would have been obvious over Potok and
Graham. Although Potok does not disclose the additional
limitations of dependent claim 2, the limitations of “deter-
mining” and “selecting” businesses, and “printing” adver-
tisements for those businesses, see J.A. 213 (disclosing, in
claim 2, “determining existing businesses located within a
predetermined distance of the advertising mat, selecting
retail businesses from the existing businesses, and
10                                             IN RE: TAYLOR



printing on the advertising mat advertisements for a pre-
determined number of the selected retail businesses”), Gra-
ham does. Graham discloses a searchable database
wherein a user may customize the selection of coupons
based on criteria such as “their distance from [a desired]
location,” J.A. 363, and further teaches how the user may
select those coupons for inclusion in a coupon booklet for
later printing, J.A. 364. A PHOSITA would have found it
obvious to employ Graham’s teaching for claim 2’s determi-
nation and selection of businesses based on geography. See
KSR, 550 U.S. at 401. Taylor’s argument that Graham
fails to account for the selection and printing of businesses
based only on its geographic location, Appellants’ Br. 29,
does not prevail. The ’000 application does not preclude
Graham’s disclosures regarding the selection and printing
of coupons based upon multiple other search criteria, see
J.A. 364 (disclosing the “numerical encoding” of businesses
for factors, such as location, where the codes may be used
to identify and group the businesses based on geographic
region). Graham discloses a method of searching busi-
nesses based on geographic location. See J.A. 364. Accord-
ingly, claim 2 would have been obvious over the
combination of Potok and Graham.
                        C. Claim 13
     The PTAB also found claim 13 obvious over the combi-
nation of Edstrom and Potok. J.A. 17–18. The PTAB rea-
soned that it would have been obvious under Edstrom “to
take advantage of the time a user spends in front of a gas
pump to advertise products and make advertising reve-
nue.” J.A. 18–19. Taylor argues that Edstrom and Potok
fail to teach all limitations of claim 13, Appellants’ Br. 32,
and that a PHOSITA would not have been motivation to
combine Potok and Edstrom, id. at 31. We disagree with
Taylor.
    Substantial evidence supports the PTAB’s finding that
claim 13 would have been obvious. Claim 13 and Edstrom
IN RE: TAYLOR                                             11



each teach the placement of a floor mat at the base of a gas
pump. See J.A. 215 (teaching, in claim 13, “a station com-
prising: a gas pump; and an advertisement mat compris-
ing pre-printed advertisements located on the ground at the
base of the gas pump wherein the advertisements are from
different businesses that are off the premise of the gas
pump” (emphasis added)), 331–32 (disclosing, in Edstrom,
a “mat [that] is located in front of the first gasoline pump,
such that a user attempting to use the first gasoline pump
will stand of the mat when dispensing gasoline into a first
motor vehicle” (emphases added)). While Edstrom does not
teach the placement of advertisements on the mat, Potok
does, as described above. See J.A. 337 (disclosing, in Potok,
“[a] floor advertising system and method that utilizes a
floor mat having a recessed area for receiving an advertis-
ing panel”). Based on the combination of Edstrom, which
discloses the placement of a floor mat in front of a gas
pump, J.A. 331–32, and Potok, which discloses the place-
ment of advertisements on a floor mat, J.A. 337, a
PHOSITA would have been motivated to combine this prior
art to meet the limitations of claim 13’s advertising floor
mat placed at the base of a gas pump, J.A. 344 (discussing
the benefits of floor advertising). Accordingly, substantial
evidence supports the PTAB’s decision.
    Taylor’s primary counterargument is unavailing. Tay-
lor argues the PTAB improperly relied on hindsight to
reach its determination. Appellants’ Br. 31. Specifically,
Taylor contends that “Edstrom does not disclose placing
advertisement[s] on mats at all” and no evidence exists to
modify Edstrom for the inclusion of the advertisements.
Id. at 32. Hindsight is not a permissible basis for deter-
mining obviousness. See In re Cyclobenzaprine Hydrochlo-
ride Extended-Release Capsule Patent Litig., 676 F.3d
1063, 1073 (Fed. Cir. 2012) (explaining that “hindsight
analysis is inappropriate because obviousness must be as-
sessed at the time the invention was made”). The PTAB
did not engage in impermissible hindsight here, as the
12                                            IN RE: TAYLOR



PTAB’s analysis considers the entirety of the teachings of
Edstrom and Potok. See J.A. 18–19 (describing Edstrom
and Potok and citing references relied upon outside the
prior art). Accordingly, Taylor fails to demonstrate error
in the PTAB’s finding. 2
                       CONCLUSION
    We have considered Taylor’s remaining arguments and
find them unpersuasive. 3 Accordingly, the Decision on Ap-
peal of the U.S. Patent and Trademark Office’s Patent
Trial and Appeal Board is
                       AFFIRMED




     2   Taylor failed to separately challenge the Exam-
iner’s obviousness determinations for claims 10–12 before
the PTAB and before us. See J.A. 19. See generally Appel-
lants’ Br. Accordingly, the argument is waived. See
SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312,
1320 (Fed Cir. 2006) (deeming waived an argument not de-
veloped in an opening brief).
     3   Although Taylor challenges the PTAB’s alternative
determinations of unpatentability of the Proposed Claims
for lack of adequate written description and indefiniteness,
see Appellants’ Br. 13–22, we need not address these argu-
ments on appeal, given that we uphold the PTAB’s obvious-
ness determinations, see supra Section II.A–C; see also In
re Gleave, 560 F.3d 1331, 1338 (Fed. Cir. 2009) (declining
to address alternative grounds of unpatentability when we
uphold one such ground).
