       NOTE: This disposition is nonprecedential.



  United States Court of Appeals
      for the Federal Circuit
                ______________________

         RUDOLPH TECHNOLOGIES, INC.,
                  Appellant

                           v.

                   CAMTEK, LTD.,
                       Appellee
                ______________________

                      2015-1418
                ______________________

    Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. 95/001,874.
                  ______________________

              Decided: December 22, 2016
                ______________________

    DANIEL W. MCDONALD, Merchant & Gould P.C.,
Minneapolis, MN, argued for appellant. Also represented
by RACHEL C. HUGHEY, ROBERT A. KALINSKY.

    DAVID LEON BILSKER, Quinn Emanuel Urquhart &
Sullivan, LLP, San Francisco, CA, argued for appellee.
                 ______________________

     Before NEWMAN, REYNA, and STOLL, Circuit Judges.
2              RUDOLPH TECHNOLOGIES, INC.   v. CAMTEK, LTD.



           Opinion for the court filed PER CURIAM.
      Opinion dissenting-in-part filed by Circuit Judge
                        REYNA.
PER CURIAM.
    Rudolph Technologies, Inc. (“Rudolph”) appeals an in-
ter partes reexamination decision of the U.S. Patent and
Trademark Office Patent Trial and Appeal Board
(“Board”). The Board affirmed the examiner’s decision
that rejected claims 1–3, 6, 7, 9–11, 14, and 17–19 of
U.S. Patent No. 7,729,528 (the “’528 patent”) as obvious.
The Board rejected on new grounds claims 30–34 and 36
of the ’528 patent as obvious. We reverse the Board’s
rejection of claims 9–11 as obvious. We affirm the Board’s
obviousness determinations for claims 1–3, 6, 7, 14, and
17-19 on original grounds as supported by substantial
evidence. We dismiss for lack of jurisdiction Rudolph’s
appeal as to the newly rejected claims.
                      BACKGROUND
    The ’528 patent describes systems and methods for in-
specting substrates, such as silicon wafers, used to fabri-
cate computer chips or “die.” A substrate can consist of an
individual die, a plurality of die, one portion of an indi-
vidual die, or portions of an individual die. See generally
claim 1. The claims are directed to using a visual inspec-
tion device for visually inputting multiple known good
quality substrates and using a microprocessor to train the
system and develop a model of a good quality wafer. ’528
Patent col. 7 ll. 5–8, 13–16. The visual inspection device
may be any type of camera capable of high-resolution
imaging. Id. cols. 9–10 ll. 67–01. By creating a model
from imaging multiple substrates, the model can be used
to inspect substrates of unknown quality to distinguish
good quality substrates from defective substrates. The
inspection device accounts for color and other visual
variations that could produce false negatives if a one-to-
RUDOLPH TECHNOLOGIES, INC.   v. CAMTEK, LTD.                3



one comparison is used. Id. col. 8, l.55–col. 9 l. 42, col. 14
ll. 28–60. A gray scale is used for each pixel in the cam-
era image, providing a value from 0 to 255 to indicate
variation from pure black to pure white. Id. col. 14 ll. 47–
53. A mean may be determined from the pool of sub-
strates. Id. col. 13 ll. 13–19, col. 14 ll. 47–49. Standard
deviations of the gray scale value of each pixel may also
be determined from the pool. Id. col. 14 ll. 54–60. Ac-
ceptable variations may be adjusted based on viewing
additional substrates. Id. col. 14 ll. 28–67.
     Once a model of a good quality wafer is developed,
substrates of unknown quality are inspected by the in-
spection device in a single inspection phase. The un-
known quality substrate images are compared to the
model to determine their quality. Id. cols. 15–18 ll. 56–
21. If the model and the inspected substrate match, then
the inspected substrate passes inspection; if they do not
match, then the inspected substrate fails inspection. Id.
col. 7 l.54–col. 8 l. 15.
    The ’528 patent has 53 claims, with independent
claims 1, 9, 14, 30, and 32 being relevant to this appeal.
    Claim 1 recites a “visual inspection device for visually
inputting a plurality of known good quality substrates
during training.” Claim 1 does not recite “training a
model,” but the claim does reference “a microprocessor
having processing and memory capabilities for developing
a model of good quality substrate and comparing un-
known quality substrates to the model.”
    Claim 9 recites “training a model as to parameters of
a good substrate via optical viewing of multiple known
good substrates” and “inspecting the unknown quality
substrates using the model.” Both claims 1 and 9 disclose
the use of multiple substrates.
    Claim 14 recites “a controller for comparing pixel data
for unknown quality substrates to a model of a good
4               RUDOLPH TECHNOLOGIES, INC.   v. CAMTEK, LTD.



quality substrate.” Unlike claims 1 and 9, claim 14 does
not disclose forming a model through multiple substrates.
Also, claim 14 does not recite the “training” or “training a
model” limitations.
    Claims 30 and 32 recite using at least two substrates
to create a model. Claims 30 and 32 do not recite the
“training” limitation.
    All claims recite an “illuminator,” a method for “illu-
minating,” or a means for “illuminating” the substrate or
a portion of the substrate during inspection.
                   Prior Art References
    In the inter partes reexamination proceeding, the ex-
aminer relied on two references:         U.S. Patent No.
5,982,921 (“Alumot”) and U.S. Patent No. 5,298,963
(“Moriya”). See, e.g., J.A. 4–5, 1290–1303.
    Alumot describes a system for inspecting individual
die on semiconductor wafers. Alumot identifies defective
die by comparing an inspected die to a reference pattern.
Alumot teaches that inspection occurs in two phases and
discloses that “it is contemplated, however, that the
invention, or features thereof, could also be embodied in
the apparatus which effects only the first examination or
only the second examination.” J.A. 385. Alumot discloses
that the reference pattern can be created using “at least
one” reference:
    As also indicated above, during the Phase I exam-
    ination (and also the Phase II examination), the
    pattern of one die D, serving as the inspected pat-
    tern, is compared with the light pattern of at least
    one other die, serving as the reference pattern, to
    determine the likelihood of a defect being present
    in the inspected pattern.
Alumot col. 8 ll. 37–43 (emphasis added).
RUDOLPH TECHNOLOGIES, INC.   v. CAMTEK, LTD.                5



    Alumot further teaches that a comparator (i.e., Com-
parator 77) receives data about the reference pattern from
a memory storing data about the reference (i.e., Reference
Die Memory 75) and data about the die under inspection.
J.A. 341, 376. The comparator then compares the two
data items to determine whether the die is potentially
defective. The comparison is done pixel by pixel. J.A.
341, 376. The reference image or pattern may therefore
be a pattern on another like article (e.g., a die-to-die
comparison), another like pattern on the same article
(repetitive-pattern comparison), or data stored in a data-
base (die-to-database comparison):
    Instead of using, as a reference to be compared
    with the data derived from the inspected article,
    data generated from real images of another like
    article (in the die-to-die comparison), or of another
    like pattern on the same article (repetitive pattern
    comparison), the reference data may be generated
    from simulated images derived from a database;
    such a comparison is called a die-to-database
    comparison.
Alumot col. 27 ll. 45–51 (emphases added); see also J.A.
1291.
     Moriya discloses another system for inspecting the
surface of semiconductor wafers. J.A. 303–21. In particu-
lar, Moriya teaches using an illuminator to provide illu-
mination to a moving substrate and a camera for
capturing still images of the moving substrate during
inspection of the substrate’s surface. See, e.g., Moriya col.
4 ll. 32–40, col. 7 ll. 57–66, col. 8 ll. 22–38.
                    Procedural History
    In 2012, Camtek Ltd. (“Camtek”) requested inter
partes reexamination of the ’528 patent. The examiner
rejected claims 1–3, 6, 7, 9–11, 14, and 17–19 as obvious
over Alumot in view of Moriya and rejected claims 30–34
6               RUDOLPH TECHNOLOGIES, INC.   v. CAMTEK, LTD.



and 36 as anticipated by Alumot. J.A. 1290–1303. On
appeal, the Board affirmed the examiner’s rejection of
claims 1–3, 6, 7, 9–11, 14, and 17–19 as obvious. J.A. 10–
11. The Board further rejected claims 30–34 and 36 on
new grounds as obvious over Alumot. J.A. 15–16, 19–21.
    The Board placed Rudolph on notice that the newly
rejected claims were not final rejections. The Board
advised Rudolph that it had to take further action if
Rudolph wished to appeal the new grounds on which the
obviousness decision was based:
    Under 37 C.F.R. § 41.77(b), our decision includes a
    new ground of rejection. That section provides
    that “a new ground of rejection . . . shall not be
    considered final for judicial review.” That section
    also provides that Patent Owner, WITHIN ONE
    MONTH FROM THE DATE OF THE DECISION,
    must exercise one of the following two options
    with respect to the new grounds of rejection to
    avoid termination of the appeal proceeding as to
    the rejected claims . . . .
    J.A. 21 (emphasis in original). According to the
Board’s instructions, Rudolph was required to either
reopen prosecution or request a rehearing if it wished to
appeal the new-grounds rejections.
    Rudolph appeals.       We have jurisdiction under
28 U.S.C. § 1295(a)(4)(A) and 35 U.S.C. § 141(b).
                   STANDARD OF REVIEW
    During a reexamination proceeding, the presumption
of patent validity does not apply, and a petitioner may
prove obviousness invalidity by preponderant evidence.
Q. I. Press Controls, B.V. v. Lee, 752 F.3d 1371, 1379 (Fed.
Cir. 2014). A patentee can demonstrate error by showing
that the Board either reached an incorrect conclusion on
obviousness or based its obviousness determination on
RUDOLPH TECHNOLOGIES, INC.   v. CAMTEK, LTD.               7



incorrect factual predicates. See In re Giannelli, 739 F.3d
1375, 1378 (Fed. Cir. 2014).
     Obviousness under 35 U.S.C. § 103 is a question of
law based on underlying findings of fact. Flo Healthcare
Sols., LLC v. Kappos, 697 F.3d 1367, 1375 (Fed. Cir. 2012)
(citing cases). We review the Board’s legal determina-
tions de novo and factual findings for substantial evi-
dence. See In re Elsner, 381 F.3d 1125, 1127 (Fed. Cir.
2004). “Substantial evidence is more than a mere scintil-
la, and such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Ad
Hoc Shrimp Trade Action Comm. v. United States, 618
F.3d 1316, 1321 (Fed. Cir. 2010) (citations omitted).
    During reexamination, the Board must construe
claims giving them their broadest reasonable interpreta-
tion consistent with the specification. In re Rambus, Inc.,
753 F.3d 1253, 1255 (Fed. Cir. 2014). The Board’s inter-
pretation of disputed claim language must be reasonable.
In re Morris, 127 F.3d 1048, 1055 (Fed. Cir. 1997). When
findings of fact extrinsic to the patent are not at issue, we
review de novo the Board’s determination of the broadest
reasonable interpretation of the claims. See Cuozzo Speed
Techs., LLC v. Lee, 136 S. Ct. 2131, 2134–35 (2016).
                        DISCUSSION
    Rudolph appeals the Board’s decision that claims 1–3,
6, 7, 9–11, 14, 17–19, 30–34, and 36 are obvious under
35 U.S.C. § 103. Rudolph does not separately challenge
the Board’s decision on the dependent claims. Therefore,
we review the Board’s decision on the independent claims
only.
             Independent Claims 1, 9, and 14
    Rudolph’s primary argument concerns Alumot’s die-
to-die comparison description, which discloses comparing
the pattern of an inspected die to the pattern of “at least
one” other die. Alumot col. 5 ll. 24–29; see also J.A. 9–11.
8               RUDOLPH TECHNOLOGIES, INC.   v. CAMTEK, LTD.



Rudolph argues that the Board erred in interpreting “at
least one” to mean either multiple one-to-one die compari-
sons or comparing multiple die patterns collectively.
Rudolph argues that the Board erred in determining that
both possibilities exist. Rudolph argues that the language
“at least one” modifies the phrase “serving as the refer-
ence pattern,” which is singular and denotes only one-to-
one comparisons. Rudolph cites the following passage and
contends that the phrase “at least one” discloses singular,
not multiple, comparisons:
    In this manner, different dies on the same wafer
    are continuously scanned to produce the scattered
    light collected by the light collectors 42 (or 42’,
    FIGS. 6a–8a) so as to enable a die-by-die compari-
    son to be made of each die, called the inspected
    die, with another die, called the reference die, to
    produce an indication of the probability of a defect
    in the inspected die.
Alumot col. 9 ll. 3–9.
    Rudolph also contends that Alumot does not disclose a
model, training a model, or using a microprocessor for
developing a model. Rudolph argues that Alumot’s die-to-
database comparison is not a model based on images from
multiple substrates; rather, it is a purely theoretical
disclosure based on mathematics.
    Rudolph suggests that Alumot criticizes as inefficient
the inspection of patterned wafers using images of pat-
terns, and that Alumot characterizes the use of substrate
images for inspection as “extremely slow.” Alumot col. 1 l.
34.
    Rudolph also argues that the Board failed to define
the level of ordinary skill in the art.
    Camtek responds that the Board’s conclusions on ob-
viousness are supported by substantial evidence. Camtek
argues that the Board’s analysis of the “at least one”
RUDOLPH TECHNOLOGIES, INC.   v. CAMTEK, LTD.              9



language is consistent with the teaching of Alumot and
comports with the understanding of a skilled artisan that
the phrase contemplates using more than one die as a
reference for comparisons. Camtek contends that Alu-
mot’s reference-pattern disclosure corresponds to the
claimed “model” because the reference pattern is created
using the intensities of individual pixels from an image of
the reference die with a classification type for each pixel.
Camtek also rejects the notion that Alumot teaches away
from the use of imagery during die inspections. Finally,
Camtek argues that Rudolph fails to show prejudice from
any failure by the Board to define the level of ordinary
skill in the art.
   Rudolph is correct with respect to claim 9. Claim 9
requires “training a model as to parameters of a good
substrate via optical viewing of multiple known good
substrates.” ’528 patent col. 21 ll. 60–61.
     It is undisputed that Alumot does not teach training a
model using multiple known good substrates. Alumot
merely states: “the pattern of one die D, serving as the
inspected pattern, is compared with the light pattern of at
least one other die, serving as the reference pattern.”
Alumot col. 8 ll. 39–41. Even the Board found that “Alu-
mot does not indicate clearly whether [its] multi-die
comparison . . . involves (1) multiple one-to-one die com-
parisons as Patent Owner contends or (2) comparing
multiple patterns collectively to an inspected die as
Requestor contends.” J.A. 13. Nonetheless, the Board
concluded, without any evidentiary support, that “skilled
artisans would understand that there are only two possi-
bilities to compare a die’s pattern with that of multiple
other dies in Alumot: the comparison is either done indi-
vidually on a die-by-die basis (i.e., multiple one-to-one
comparisons) or collectively (i.e., plural-to-one compari-
son)” and, as such, Alumot renders obvious “training a
model as to parameters of a good substrate via optical
10             RUDOLPH TECHNOLOGIES, INC.   v. CAMTEK, LTD.



viewing of multiple known good substrates.” ’528 patent
col. 21 ll. 60–61.
    For the Board to have found that the “at least one
other die” disclosure in Alumot suggests multiple-die
comparison is one thing. But extrapolating this disclosure
even further, to find that Alumot suggests training a
composite model, is quite another, requiring more infer-
ences than are justified considering the sum and sub-
stance of Alumot. “A factfinder should be aware, of
course, of the distortion caused by hindsight bias and
must be cautious of arguments reliant upon ex post rea-
soning.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421
(2007) (citing Graham v. John Deere Co., 383 U.S. 1, 36
(1966)). Indeed, one must “be careful not to allow hind-
sight reconstruction of references to reach the claimed
invention without any explanation as to how or why the
references would be [modified] to produce the claimed
invention.” Kinetic Concepts, Inc. v. Smith & Nephew,
Inc., 688 F.3d 1342, 1368 (Fed. Cir. 2012) (quoting In-
nogenetics, N.V. v. Abbott Labs., 512 F.3d 1363, 1374 n.3
(Fed. Cir. 2008)). Because the Board relied on no evi-
dence for its determination that one of ordinary skill
would have known of training a model using multiple dies
as one of two ways to compare an inspected light pattern
to that of “at least one other die,” substantial evidence
does not support the factual findings underlying its obvi-
ousness conclusion for claim 9 and the claims depending
from it. Accordingly, we find claim 9 not obvious over
Alumot in view of Moriya.
     Independent claims 1 and 14, however, do not require
a single model to be trained using multiple dies. Claim 1
refers to “inputting of a plurality of known good quality
substrates having a user defined level of quality during
training” and later provides for “developing a model,” but
it leaves open the possibility that a model might be
trained from a single known good substrate. ’528 patent
col. 21 ll. 23–33.  As the Board found, “multiple wafers
RUDOLPH TECHNOLOGIES, INC.   v. CAMTEK, LTD.               11



are needed to train the system,” but not to train the
model, for claim 1. A8. Similarly, claim 14 refers to a
“model of a good quality substrate,” which could be pre-
pared from a single known good substrate. ’528 patent
col. 22 ll. 38–39. Accordingly, claims 1 and 14 and their
dependent claims are rendered obvious.
    We are not persuaded by Rudolph’s argument that the
Board erred by failing to articulate the level of ordinary
skill in the art. Failure to address the level of skill in the
art is not error when the parties do not put such a deter-
mination at issue and when the level of an artisan’s skill
is evident from the prior art and patent. While it is
preferable that the fact finder specify the level of skill it
has found to apply to the invention at issue, “the absence
of specific findings on the level of skill in the art does not
give rise to reversible error ‘where the prior art itself
reflects an appropriate level and a need for testimony is
not shown.’” Okajima v. Bourdeau, 261 F.3d 1350, 1355
(Fed. Cir. 2001) (quoting Litton Indus. Prods., Inc. v. Solid
State Sys. Corp., 755 F.2d 158, 163 (Fed. Cir. 1985)); see
also Custom Accessories, Inc. v. Jeffrey-Allan Indus., Inc.,
807 F.2d 955, 963 (Fed. Cir. 1986) (noting that the district
court’s failure to make a specific finding as to the level of
skill in the art is not reversible error when the failure did
not influence the ultimate conclusion of obviousness). On
the record evidence, we are satisfied that the patent and
prior art reflect the appropriate level of skill. We also are
not persuaded by Rudolph’s suggested teaching-away
argument. Although Alumot characterized certain in-
spection systems as “extremely slow,” the Board did not
err in concluding that skilled artisans would still consider
using those inspection systems.
    We affirm the Board’s decision that claims 1–3, 6, 7,
14, and 17–19 are obvious over the prior art, and reverse
the Board’s decision with respect to claims 9–11.
              Independent Claims 30 and 32
12             RUDOLPH TECHNOLOGIES, INC.   v. CAMTEK, LTD.



    The Board rejected claims 30–34 and 36 on new
grounds as obvious over Alumot. The Board placed Ru-
dolph on notice that the newly rejected claims were not
final rejections, citing 37 C.F.R. § 41.77(b). Camtek
argues that we lack jurisdiction to review the newly
rejected claims. Camtek contends that Rudolph was
required to reopen prosecution or request a rehearing on
the newly rejected claims, and that Rudolph failed to do
so. Rudolph responds that review is proper because those
claims were rejected for the same reasons as the other
claims. Rudolph explains that a patent owner is required
to reopen prosecution or request rehearing only under
certain circumstances. For example, in reopening prose-
cution, the patent owner must present “either an amend-
ment of the claims so rejected or new evidence related to
the claims so rejected, or both.” 37 C.F.R. § 41.77(b)(1).
Rudolph asserts that because it does not seek to amend or
submit new evidence, it was not required to reopen prose-
cution or request a rehearing.
    We agree with Camtek that review of the newly re-
jected claims is not properly before us. Under 37 C.F.R.
§ 41.77(b), “[a]ny decision which includes a new ground of
rejection pursuant to this paragraph shall not be consid-
ered final for judicial review.” Id. § 41.77(b). Upon re-
ceiving a rejection on new grounds, the regulation directs
the patentee to pursue one of two options within one
month of the decision to “avoid termination of the appeal
proceeding.” Id. § 41.77(b)(1)–(2). The regulation makes
clear that the penalty for failing to pursue one of these
two opinions is that the appeal will be terminated as to
those newly rejected claims.
    Section 41.77(b) requires parties to either reopen
prosecution or request rehearing to exhaust their admin-
istrative remedies. See, e.g., Acme Scale Co. v. LTS Scale
Co., 615 F. App’x 673, 677–78 (Fed. Cir. 2015). The Board
placed Rudolph on clear, express notice of this require-
ment and the consequences for failing to act. J.A. 21.
RUDOLPH TECHNOLOGIES, INC.   v. CAMTEK, LTD.            13



That Rudolph does not seek to amend or present new
evidence does not absolve Rudolph from following proce-
dural requirements for appealing newly rejected claims.
The purpose of the regulation is fundamental. We have
often said that only final agency determinations and court
judgments are ripe for appeal. See Morris v. United
States, 392 F.3d 1372, 1376 (Fed. Cir. 2004). Section
41.77(b) permits review of decisions on new grounds only
after the Board has received evidence or argument chal-
lenging the Board’s determination. To the extent Rudolph
believed its argument and evidence made in connection
with claims 1–3, 6, 7, 9–11, 14, and 17–19 subsumed any
additional argument it could have made as to claims 30–
34 and 36, Rudolph should have requested a rehearing
and simply so stated.
   Rudolph’s appeal as to claims 30–34 and 36 is dis-
missed for want of jurisdiction.
                       CONCLUSION
     The Board’s decision for claims 1–3, 6, 7, 14, and 17–
19 is correct and supported by substantial evidence. We
affirm the Board’s decision on those claims. The Board’s
finding of obviousness for claims 9–11 is not supported by
substantial evidence, and we reverse the Board’s decision
on those claims. We dismiss Rudolph’s appeal as to
claims 30–34 and 36 because we lack jurisdiction to
review the Board’s new grounds for rejection.
    AFFIRMED-IN-PART, REVERSED-IN-PART,
          AND DISMISSED-IN-PART
                          COSTS
   Each party shall bear its own costs.
        NOTE: This disposition is nonprecedential.



  United States Court of Appeals
      for the Federal Circuit
                  ______________________

         RUDOLPH TECHNOLOGIES, INC.,
                  Appellant

                             v.

                     CAMTEK, LTD.,
                         Appellee
                  ______________________

                        2015-1418
                  ______________________

    Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. 95/001,874.
                  ______________________

REYNA, Circuit Judge, dissenting in part.
    I agree with the court’s opinion except with respect   to
claim 9 and the claims depending from it. For claim        9,
the majority concludes that the Board’s determination      of
obviousness is unsupported by substantial evidence.         I
disagree.
    The Board found, based on the text of the Alumot ref-
erence, that “Alumot at least suggests . . . comparing
multiple patterns collectively to an inspected die.” A10.
Alumot specifically explains that the system compares
“the inspected pattern” to “the light pattern of at least one
2               RUDOLPH TECHNOLOGIES, INC.   v. CAMTEK, LTD.



other die, serving as the reference pattern.” (A374, 8:37–
43.) In my view, a POSITA would read the term “at least
one” to include more than one: “at least” means that both
exactly one die and multiple dies are possible.
    Curiously, however, the majority claims that “the
Board relied on no evidence for its determination that
one of ordinary skill would have known of training a
model using multiple dies as one of two ways to compare
an inspected light pattern to that of at least one other
die.” Maj. Op. 10 (emphasis added). The majority does not
explain how or why the text from the Alumot reference
does not count as evidentiary support, nor does it cite
legal authority for that proposition. Indeed, a basic tenet
of U.S. Patent law is that the text, diagrams, and figures
of a prior art reference are evidence. See, e.g., Sakraida v.
Ag Pro, Inc., 425 U.S. 273, 280 (1976) (listing prior pa-
tents and prior art publications as types of evidence in an
obviousness inquiry); Okajima v. Bourdeau, 261 F.3d
1350, 1356 (Fed. Cir. 2001) (citing the scope and content
of the prior art references as substantial evidence in
support of the Board’s determination of nonobviousness).
The interpretation of such evidence results in factual
findings. “Art can legitimately serve to document the
knowledge that skilled artisans would bring to bear in
reading the prior art identified as producing obviousness.”
Ariosa Diagnostics v. Verinata Health, Inc., 805 F.3d
1359, 1365 (Fed. Cir. 2015). These factual findings can
“include findings as to the scope and content of the prior
art, the differences between the prior art and the claimed
invention, the level of ordinary skill in the art, the pres-
ence or absence of a motivation to combine or modify with
a reasonable expectation of success, and objective indicia
of non-obviousness.” Id. at 1364.
    The majority appears to concede that the Board’s find-
ing that “Alumot suggests multiple-die comparison” was
likely valid. Maj. Op. 10. The Board found that there are
two ways to implement multiple-die comparison, “(1)
RUDOLPH TECHNOLOGIES, INC.   v. CAMTEK, LTD.               3



multiple one-to-one die comparisons . . . or (2) comparing
multiple patterns collectively to an inspected die,” and
that Alumot is ambiguous as to which is used. A9–10.
The second option, collective comparison, corresponds
closely to training a model. The Board, citing the Alumot
specification as evidence, found that “Alumot at least
suggests” the second alternative. A10. So perhaps in
stating that there is no evidence, the majority meant that
there is no evidence that speaks specifically to the fact
that a POSITA might choose the second alternative
suggested by Alumot.
     Even so, no such specific evidence is required. See
Okajima, 261 F.3d at 1356 (even though only the prior art
references themselves were presented, this was substan-
tial evidence for the Board’s findings). The Board’s ulti-
mate finding was that it would have been obvious to a
skilled artisan to train a model “using plural known good
quality substrates.” A10. To get from a choice of two
options, the second of which entails training a model, to
actually training a model, a POSITA merely needs to
make a simple binary decision. That choice is a small
mental leap that the Board found the POSITA would
make after reading the cited evidence in the patent. This
finding, what a POSITA would have learned after reading
the specification of the reference, is a factual finding. See
Ariosa, 805 F.3d at 1365; cf. KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 400 (2007) (findings about the “specific
understanding or principle” within a POSITA’s knowledge
are unnecessary).
    The majority errs in its belief that the standard of
substantial evidence requires an express statement of the
system rendered obvious or a specific explanation in
evidence for how a POSITA would address every yes-or-no
question. See, e.g., Merck & Cie v. Gnosis S.p.A., 808 F.3d
829, 834–35 (Fed. Cir. 2015) (making inferences from
context of prior art references about what a POSITA
would have understood); In re Gartside, 203 F.3d 1305,
4               RUDOLPH TECHNOLOGIES, INC.   v. CAMTEK, LTD.



1320 (Fed. Cir. 2000) (finding substantial evidence for a
POSITA’s motivation to combine references even when
there was no explicit teaching in the references suggest-
ing that they be combined). Yet that is the evidentiary
justification the majority seems to require of the Board.
    Substantial evidence is a deferential standard of re-
view. “Substantial evidence is more than a mere scintilla,
and such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Ad Hoc
Shrimp Trade Action Comm. v. United States, 618 F.3d
1316, 1321 (Fed. Cir. 2010) (citations omitted). Even
when a reasonable fact-finder “could have found some
facts differently,” the result “must be sustained if it is
supported by substantial evidence on the record.” Apple
Inc. v. Samsung Elecs. Co., 839 F.3d 1034, 1062 (Fed. Cir.
2016) (en banc) (upholding presumed fact findings based
on substantial evidence).
     The Board’s factual finding is supported by substan-
tial evidence. Here, a reasonable mind might have found
Alumot’s suggestion that multiple known good dies be
used as a reference as sufficient to support the idea that a
POSITA might have built such a system by creating a
model of those multiple known good dies. In fact, the
reasonable minds at the Board came to this very conclu-
sion. That the majority would have found otherwise is
immaterial.
    “[A]s an appellate court, it is beyond our role to re-
weigh the evidence or consider what the record might
have supported, or investigate potential arguments that
were not meaningfully raised.” Apple, 839 F.3d at 1062.
“Our review is limited to whether fact findings made and
challenged on appeal are supported by substantial evi-
dence in the record, and if so, whether those fact findings
support the legal conclusion of obviousness.” Id.
   Here, the majority errs in that it sets aside what the
Board properly found to be “evidence” to find that there is
RUDOLPH TECHNOLOGIES, INC.   v. CAMTEK, LTD.            5



“no evidence.” This is contrary to the standard of review
of substantial evidence. A reasonable person reading
Alumot could conclude that a skilled artisan reading the
reference would think to try training a model of known
good dies. For this reason, I dissent from the majority as
to claim 9.
