       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                   GOOGLE LLC,
                     Appellant

                           v.

           KONINKLIJKE PHILIPS N.V.,
                     Appellee
              ______________________

                      2018-2213
                ______________________

    Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2017-
00437.
                 ______________________

               Decided: October 23, 2019
                ______________________

    DAVID M. KRINSKY, Williams & Connolly LLP, Wash-
ington, DC, argued for appellant. Also represented by
KEVIN HARDY, AARON P. MAURER.

   JUSTIN J. OLIVER, Venable LLP, Washington, DC, ar-
gued for appellee.
                 ______________________

   Before MOORE, BRYSON, and CHEN, Circuit Judges.
2                      GOOGLE LLC v. KONINKLIJKE PHILIPS N.V.




CHEN, Circuit Judge.
    Google appeals from the final written decision of the
United States Patent and Trademark Office Patent Trial
and Appeal Board (Board) in the above-captioned inter
partes review proceeding. The Board found that petitioner-
appellant Google failed to meet its burden of establishing
that challenged claims 10–16, 20, and 21 of U.S. Patent No.
6,772,114 (the ’114 patent) are unpatentable on either of
two grounds: (1) anticipation by Patent Cooperation Treaty
(PCT) International Application Publication No. 98/52187
(Tucker), or (2) obviousness over Tucker in view of well-
known art. We agree with the Board as to both grounds
and therefore affirm.
    The ’114 patent generally relates to an encoding
scheme for transmitting audio signals. See ’114 patent at
Abstract. The challenged claims all require a “second de-
coder” that “applies a high-pass filter . . . to a noise signal
to generate” a reconstructed signal within a high-frequency
range. See id. at claims 10, 20 (emphasis added). Inde-
pendent claim 10 is representative of the challenged claims
and recites the disputed “high-pass filter”:
    10. A transmission system, comprising:
    a transmitter including
        a splitter for splitting up a transmission
        signal into a low frequency signal within a
        low frequency range and a high frequency
        signal within a high frequency range, the
        low frequency range being lower than the
        high frequency range,
        a first coder for deriving a first coded signal
        within the first frequency range from the
        low frequency signal, and
GOOGLE LLC v. KONINKLIJKE PHILIPS N.V.                      3



        a second coder for deriving a second coded
        signal within the high frequency range
        from the high frequency signal;
    a receiver in electrical communication with said
    transmitter to receive the first coded signal and the
    second coded signal, said receiver including
        a first decoder for sequentially applying a
        narrow-band decoder, an up-sampler and a
        low-pass filter to the first coded signal to
        generate a first reconstructed signal within
        the first frequency range, and
        a second decoder, wherein, based on the
        second coded signal, said second decoder
        sequentially applies a high-pass filter, a
        LPC synthesis filter and an amplifier to a
        noise signal to generate the second recon-
        structed signal.
’114 patent at claim 10 (emphasis added).
                      A. Anticipation
     Anticipation is a question of fact reviewed for substan-
tial evidence. Synopsys, Inc. v. Mentor Graphics Corp., 814
F.3d 1309, 1317 (Fed. Cir. 2016). The central dispute on
appeal is whether Tucker’s disclosure of a low-pass filter
and reflection step is the claimed high-pass filter.
    Under the Board’s construction, which is not disputed
on appeal, the claimed high-pass filter “transmits frequen-
cies above a given cutoff frequency and substantially atten-
uates all others.” J.A. 4814 (emphasis added). Google
argues that Tucker’s low-pass filter and reflection steps to-
gether disclose the claimed “high-pass filter” because these
steps collectively transmit the desired high-band portion of
the input signal while attenuating the low-band portion of
the input. We disagree. Google concedes that the Board
correctly found that Tucker’s low-pass filter transmits
4                     GOOGLE LLC v. KONINKLIJKE PHILIPS N.V.




frequencies below a given cutoff frequency. Appellant’s Br.
at 52–53; see also J.A. 14. And Tucker’s reflection step
merely takes the low-frequency band output of its low-pass
filter and moves that content to the high-frequency band.
See Tucker at 14, ll. 16–27. Collectively, then, Tucker’s
low-pass filter and reflection steps transmit the low-fre-
quency content of an input signal (albeit in the high-fre-
quency band), and do not transmit the input signal’s high-
frequency content. Google’s expert admitted as much. See
J.A. 5261, 66:5–17 (conceding that a low-pass filter whose
output is reflected to the upper band does not transmit the
high-frequency components of an input signal). Thus, sub-
stantial evidence supports the Board’s finding that
Tucker’s low-pass filter and reflection steps do not disclose
the claimed “high-pass filter,” because Tucker does not
transmit the high-frequency content of an input signal.
     Google additionally argues that Tucker’s low-pass and
reflection steps are collectively the claimed “high-pass fil-
ter” because they achieve the same result as a high-pass
filter. We are unpersuaded. The similarity of the resulting
information that is produced by Tucker’s system to what
would have been produced if Tucker had actually employed
a high-pass filter does not convert Tucker’s low-pass filter
and reflection steps into a high-pass filter that transmits
the high-band content. To the contrary, Tucker’s process
discards the high-band content of the input signal.
     Though the design of a high-pass filter may include a
low-pass filter, the inclusion of a low-pass filter does not
alter the functionality of the high-pass filter. The ’114 pa-
tent discloses one such example in which the output of a
low-pass filter is used to remove, by subtraction, the low-
frequency components of the input signal. ’114 patent at
col. 4, ll. 8–12 (explaining that “the low frequency range in
the difference signal is absent”). In other words, the low-
pass filter is used to attenuate the portion of the input sig-
nal below a cut-off frequency, leaving only frequencies
above the cut-off to be transmitted—precisely the
GOOGLE LLC v. KONINKLIJKE PHILIPS N.V.                         5



functionality that the claimed high-pass filter performs. In
contrast, Tucker’s low-pass and reflection process only
transmits the portion of the input signal that is below a
cut-off frequency. Google’s reliance on the ’114 patent’s in-
clusion of a low-pass filter in its high-pass filter is thus mis-
placed.
     In sum, we agree with the Board that Tucker’s low-pass
and reflection process cannot be the claimed “high-pass fil-
ter” because this process does not transmit frequencies
above a given cutoff frequency and does not substantially
attenuate all others. The Board’s conclusion that Google
failed to meet its burden to establish that the challenged
claims are anticipated by Tucker is supported by substan-
tial evidence.
      B. Google’s Untimely Arguments Before the Board
    On appeal, Google argues that the Board abused its
discretion in failing to consider Google’s argument that it
would have been obvious to include a high-pass filter in
Tucker’s receiver in place of its low pass filter and reflec-
tion process. We disagree.
    Google’s petition for inter partes review argued that the
claims at issue were obvious over Tucker in view of the al-
leged knowledge of a person of skill in the art. J.A. 94. Alt-
hough the Board instituted the inter partes review
proceedings on this separate ground, the Board in its final
written decision declined to consider Google’s argument
that it would have been obvious to include a high-pass filter
in Tucker’s receiver. J.A. 19–20. The Board explained that
this argument was raised for the first time in Google’s Re-
ply briefing, and thus patent owner Koninklijke did not
have a fair and meaningful opportunity to respond. Id.
    We review the Board’s decision not to consider an un-
timely argument for abuse of discretion. Intelligent Bio-
Systems, Inc. v. Illumina Cambridge Ltd., 821 F.3d 1359,
1367 (Fed. Cir. 2016). Although Google argues that the
6                     GOOGLE LLC v. KONINKLIJKE PHILIPS N.V.




obviousness of filters was raised at the depositions of the
parties’ experts, Google concedes that it never raised this
theory of including a high-pass filter in Tucker’s receiver in
its petition for inter partes review. See Oral Arg. at 11:44–
12:11,             http://oralarguments.cafc.uscourts.gov/de-
fault.aspx?fl=2018-2213.mp3; J.A. 5461. We find that the
Board was within its discretion in declining to consider this
obviousness theory that was outside the scope of the peti-
tion for inter partes review. 1
                        CONCLUSION
     We have considered Google’s remaining arguments and
find them unpersuasive. For the reasons stated above, we
affirm the Board’s conclusion that Google failed to meet its
burden of showing that the challenged claims are antici-
pated by Tucker or obvious over Tucker and the well-
known art.
                        AFFIRMED




    1   The Board also rejected Google’s untimely argu-
ments as unpersuasive. J.A. 20 n.8. Because we agree with
the Board that Google’s arguments were untimely, we do
not reach the issue of whether it would have been obvious
to include a high-pass filter in Tucker’s decoder.
