  United States Court of Appeals
      for the Federal Circuit
                ______________________

         NOBEL BIOCARE SERVICES AG,
                  Appellant

                          v.

              INSTRADENT USA, INC.,
                       Appellee
                ______________________

                      2017-2256
                ______________________

    Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2015-
01786.
                 ______________________

             Decided: September 13, 2018
               ______________________

   JOHN B. SGANGA, JR., Knobbe, Martens, Olson & Bear,
LLP, Irvine, CA, argued for appellant. Also represented
by MICHELLE ARMOND, SHEILA N. SWAROOP.

   JUSTIN EDWIN GRAY, Foley & Lardner LLP, San
Diego, CA, argued for appellee. Also represented by
NICOLA ANTHONY PISANO, JOSE L. PATINO.
               ______________________

  Before PROST, Chief Judge, LOURIE and CHEN, Circuit
                        Judges.
2         NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.




LOURIE, Circuit Judge.
    Nobel Biocare Services AG (“Nobel”) appeals from the
decision of the U.S. Patent and Trademark Office (“PTO”)
Patent Trial and Appeal Board (“the Board”) in an inter
partes review (“IPR”) holding claims 1–5 and 19 of U.S.
Patent 8,714,977 (“the ’977 patent”) unpatentable. See
Instradent USA, Inc. v. Nobel Biocare Servs. AG, No.
IPR2015-01786, 2017 Pat. App. LEXIS 8329 (P.T.A.B.
Feb. 15, 2017) (“Board Decision”); Instradent USA, Inc. v.
Nobel Biocare Servs. AG, No. IPR2015-01786, 2017 WL
1969639 (P.T.A.B. May 10, 2017) (“Rehearing Decision”).
Because the Board did not err in its anticipation finding,
we affirm.
                         BACKGROUND
                               I
    Nobel owns the ’977 patent directed to dental im-
plants. The ’977 patent explains that a “feature of the
invention” is that “the coronally tapered aspect [of the
implant] is designed to allow elastic expansion of the bone
while inserting the wider area of the coronally tapered
aspect inside the bone and after insertion of the narrow
area of the coronally tapered aspect the bone relapses to
cover the coronally tapered aspect.” ’977 patent col. 5 l.
66–col. 6 l. 4; see also id. col. 2 ll. 62–66, col. 12 ll. 51–57.
The ’977 patent further states:
    In another preferred embodiment illustrated in
    FIG. 12 the coronally tapered region 85 is placed
    inside the bone so the bone can grow above this
    region. The tapered region 90 is below the bone
    level 91. The height of the coronally tapered re-
    gion 85 is 0.5–4 mm. Preferably the height is 1–3
    mm and for most cases 1.3–2.5 mm depending on
    the diameter of the implant.
Id. col. 12 ll. 10–16 (emphasis added).
NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.          3



   Claim 1 is illustrative and reads as follows:
   A dental implant comprising:
   a body;
   a coronal region of the body, the coronal region
   having a frustoconical shape wherein a diameter
   of an apical end of the coronal region is larger
   than a diameter of a coronal end of the coronal re-
   gion;
   an apical region of the body, the apical region hav-
   ing a core with a tapered region wherein a diame-
   ter of an apical end of the core is smaller than a
   diameter of a coronal end of the core and the api-
   cal end of the core is substantially flat; and
   a pair of helical threads extending from the body
   along at least a portion of the apical region, each
   of the threads comprising an apical side, a coronal
   side, and a lateral edge connecting the apical side
   and the coronal side, a base connecting the
   threads to the core, a thread height defined be-
   tween the lateral edge and the base, the lateral
   edge having a variable width that is expanded
   along a segment in the direction of the coronal end
   of the apical region, so that a least width of the
   lateral edge of the threads is adjacent the apical
   end of the apical region and a greatest width of
   the lateral edge of the threads is adjacent the cor-
   onal end of the apical region, and the threads hav-
   ing a variable height that is expanded
   substantially along the segment of the implant in
   the direction of the apical end of the apical region,
   so that a least height of the threads is adjacent
   the coronal end of the apical region and a greatest
   height at apical end of the apical region; and
4        NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.




    a bone tap, wherein the helical threads starts at
    said bone tap and said substantially flat apical
    end of the core;
    wherein each of the helical threads have a thread
    step that is defined as a distance along a longitu-
    dinal axis of the dental implant covered by a com-
    plete rotation of the dental implant, the thread
    step is between 1.5-2.5 mm.
Id. col. 17 l. 51–col. 18 l. 18 (emphasis added). Claim 2
depends from claim 1 and contains the additional limita-
tion “wherein the coronal region has a surface configured
to be in contact with bone.” Id. col. 18 ll. 19–20.
    The application that led to the ’977 patent claims pri-
ority from, inter alia, a PCT application filed on May 23,
2004. The undisputed critical date for purposes of pre-
AIA 35 U.S.C. § 102(b) (2006) 1 is May 23, 2003. The ’977
patent lists Ophir Fromovich, Yuval Jacoby, Nitzan
Bichacho, and Ben-Zion Karmon as the inventors.
                            II
    In or about the early 1990s, named inventor Fromo-
vich founded Alpha-Bio Tech Ltd. (“ABT”), which sold
dental implants and related goods. He also served as
ABT’s CEO. In his capacity at ABT, Fromovich conducted
dentist trainings and attended industry trade shows and
conferences, including the International Dental Show
(“IDS”) Conference held in Cologne, Germany. At the IDS
Conference dental manufacturers would showcase their
products and distribute written materials describing their




    1   Because the application that led to the ’977 patent
was filed before March 16, 2013, the pre-Leahy–Smith
America Invents Act (“AIA”), Pub L. No. 112-29, 125 Stat.
284 (2011), version of § 102 applies.
NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.       5



products. Nobel acquired ABT and its intellectual proper-
ty rights in 2008.
                            III
    On October 27, 2014, the U.S. International Trade
Commission (“ITC”) instituted an investigation of Instra-
dent USA, Inc.’s (“Instradent”) Drive CM dental implants
based on a complaint filed by Nobel alleging violations of
19 U.S.C. § 1337 by reason of importation of an implant
product that infringes the ’977 patent and U.S. Patent
8,764,443. Instradent alleged, inter alia, that claims 1–5
and 19 of the ’977 patent were not infringed and were
anticipated by an ABT “Product Catalog” with the date
“March 2003” on the cover (“ABT Catalog”). J.A. 1718–75.
    The ABT Catalog discloses SPI dental implant screws
of various sizes, including a 5 mm implant. J.A. 1732.
The 5 mm SPI implant is illustrated as follows:




Id. Below the illustration of the 5 mm SPI screw is the
following description: “Implant surface: ‘Hybrid’ design
2/3 apically S.L.A. (macro) 20-40µ + (micro) 2µ, 1/3 coro-
nary Acid Etched 5-10µ. Increases clot retention and is
conducive to bone healing.” Id. (emphases added).
     Another portion of the ABT Catalog with the heading
“Wide platform implant analog for ø5 and ø6mmd” states:
“It is possible to use the normal platform on all implants
incloding [sic] the ø5 or ø6mmd implants. See illustration
above.” J.A. 1746. The illustration above includes:
6        NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.




Id.
     Fromovich testified about the ABT Catalog during the
ITC proceedings. When asked why the catalog says
“March 2003” on the cover, Fromovich indicated that he
“estimated” it was because “in the end of March 2003,
normally it’s IDS in Cologne, Germany, [which] is a big
exposition. And in this exposition we go in looking for
distributor[s].” J.A. 3485. Fromovich testified that ABT
had a small booth at and he attended the March 2003 IDS
Conference. According to Fromovich, the IDS Conference
is “one of the biggest for distribution in Europe” with
possibly a thousand attendees. J.A. 3490. He further
testified that he did not recall if he brought the ABT
Catalog to the conference, but that it was “unlikely.” J.A.
3488. He explained that if he brought the ABT Catalog, it
would have been a “small amount” of catalogs because it
would have been a first version of a 62-page document,
and ABT did not send a shipment so it would have had to
fit in his luggage. J.A. 3489. Fromovich did not recall the
number of ABT Catalogs printed, but estimated between
200 and 500.
    Fromovich also testified that the ABT Catalog was
used in connection with training courses and provided to
attendees without requiring them to sign a confidentiality
agreement. Instradent introduced additional evidence,
including emails from ’977 patent inventor Karmon, that
NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.       7



it alleged established the ABT Catalog’s publication prior
to the May 2003 critical date.
     On October 27, 2015, the ITC’s Administrative Law
Judge (“ALJ”) issued an Initial Determination finding
claims 1–5 and 19 of the ’977 patent anticipated by the
ABT Catalog. On May 11, 2016, the ITC issued a Com-
mission Opinion which determined, inter alia, that In-
stradent had failed to show by clear and convincing
evidence that the ABT Catalog is prior art under § 102(b).
The ITC construed the phrase “the coronal region having
a frustoconical shape” in claim 1 (“frustoconical limita-
tion”) as “the coronal region has partly or entirely, a
frustoconical shape,” J.A. 4797, and held claims 1–5 and
19 not anticipated, but infringed. A panel of this court
affirmed without opinion. See Instradent USA, Inc. v.
Int’l Trade Comm’n, 693 F. App’x 908, 909 (Fed. Cir.
2017).
                            IV
    On August 20, 2015, Instradent petitioned for IPR of
claims 1–7, 9, and 13–20 of the ’977 patent. Nobel subse-
quently filed a statutory disclaimer of claims 9 and 13–18
of the ’977 patent under 35 U.S.C. § 253(a). The Board
instituted IPR of claims 1–5, 19, and 20 on the grounds of
unpatentability under 35 U.S.C. § 102 over the ABT
Catalog and/or 35 U.S.C. § 103 over other references not
at issue on appeal. Instradent USA, Inc. v. Nobel Biocare
Servs. AG, No. IPR2015-01786, slip op. (P.T.A.B. Feb. 19,
2016), Paper No. 14 (“Institution Decision”). In accord-
ance with its then existing regulations, the Board de-
clined to institute IPR over certain other grounds and
claims, including the disclaimed claims. Id. at *6-7, 27;
see 37 C.F.R. § 42.108(a); 37 C.F.R. § 42.107(e) (“The
patent owner may file a statutory disclaimer under 35
U.S.C. [§] 253(a) in compliance with § 1.321(a) of this
chapter, disclaiming one or more claims in the patent. No
8         NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.




inter partes review will be instituted based on disclaimed
claims.”).
    The Board adopted the same construction of the frus-
toconical limitation as the ITC, i.e., “the coronal region
has, partly or entirely, a frustoconical shape.” Board
Decision, 2017 Pat. App. LEXIS 8329, at *20. It explained
that “there is nothing that physically or logically prevents
the coronal region from ‘having’ a portion that is frusto-
conical in shape and a portion that is not.” Id. at *15.
The Board concluded that the specification supported its
construction. Id. at *16–20.
    In addressing public accessibility of the ABT Catalog,
the Board considered evidence that had been presented to
the ITC, 2 including Fromovich’s testimony, and new
evidence not considered by the ITC, including the declara-
tions and deposition testimony of Yechiam Hantman and
Zvi Chakir. In March 2003, Hantman and Chakir co-
owned Chakir Implants, Ltd., a dental supply distributor
located in Israel. J.A. 3348 ¶ 2; J.A. 3411 ¶¶ 2–3. Based
on prior customer conversations regarding ABT’s SPI
implant, Hantman stated “it was a specific goal of mine to
collect materials from the March 2003 IDS trade show
describing the SPI implant.” J.A. 3349 ¶ 7. Because
Hantman was unable to attend the conference, he re-
quested that Chakir collect catalogs from competitors at
the 2003 IDS Conference and give them to him upon his
return. Hantman’s declaration stated: “Based upon my
review of the attached materials and my specific recollec-
tions of conversations with customer [sic] in later 2002
and early 2003, and examination of the 2003 [ABT] Cata-


    2   The Board noted it was “not bound by the ITC’s
fact findings or conclusions,” and thus made an “inde-
pendent determination based on the record in [the] inter
partes review.” Board Decision, 2017 Pat. App. LEXIS
8329, at *22.
NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.        9



log after receiving it after the IDS trade show, I am
certain that the 2003 [ABT] Catalog was publically acces-
sible to the dental industry, including competitors, in
March 2003, after the IDS show that year.” J.A. 3352
¶ 14.
    Chakir’s declaration stated that he “collected catalogs
and other materials from competitors, . . . including
[ABT]” at the 2003 IDS Conference and “gave the materi-
als relating to dental implants to Mr. Hantman upon [his]
return.” J.A. 3412 ¶ 5. At his deposition in 2016, Chakir
testified that he did not recall the specific brochures he
brought back from the 2003 IDS Conference, and that the
2003 IDS Conference was the only time he collected
dental implant brochures because he was not personally
interested in dental implants. Chakir testified that
gathering brochures “is open to everyone” at the IDS
Conference and not done in secret. J.A. 5796–98.
    The Board “determine[d] that a preponderance of the
evidence establishes that the ABT Catalog qualifies as a
prior art printed publication under [pre-AIA] 35 U.S.C.
§ 102(b).” Board Decision, 2017 Pat. App. LEXIS 8329, at
*39. The Board found that “the ABT Catalog was made
available, without restriction, to members of the interest-
ed public at least during the March 2003 IDS Confer-
ence,” and that “the evidence tends to show that any
interested conference attendee could have obtained a copy
of the ABT Catalog from the ABT booth during the March
2003 IDS Conference.” Id. at *37–38.
    The Board then applied its construction of the frusto-
conical limitation to find that the ABT Catalog’s disclo-
sure of the SPI 5 mm implant with a frustoconical bevel
at the coronal-most portion anticipated claim 1. Id. at
*40–44. The Board reproduced Nobel’s annotated version
of the 5 mm implant disclosed in the ABT Catalog:
10       NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.




Id. at *40 (citing Patent Owner Response at 39).
    Nobel did not present separate arguments for claims
3–5 and 19, and the Board thus held those claims antici-
pated as well. Id. at *46. With respect to dependent
claim 2, the Board assumed arguendo that Nobel’s pro-
posed construction for “the coronal region has a surface
configured to be in contact with bone” to mean “designed
or constructed to enhance osseointegration” was correct.
Id. at *44–45. Applying that construction, the Board
found claim 2 anticipated by the ABT Catalog based on
the disclosure of acid etching directly beneath the image
of the SPI 5 mm implant found to anticipate claim 1. Id.
at *45–46. The Board upheld the patentability of claims
1–5, 19, and 20 over an obviousness challenge based on
different references, a determination from which no party
has appealed.
    The Board subsequently denied Nobel’s request for
rehearing based on alleged errors in the Board’s construc-
tion of the frustoconical limitation. The Board explained
that while it had “declined to categorically exclude small
bevels from our construction,” it “also indicated expressly
that the construction adopted in our Final Written Deci-
sion did not permit any inconsequential variations in edge
sharpness to be a frustoconical region.” Rehearing Deci-
sion, 2017 WL 1969639, at *1 (internal quotation marks
and citations omitted) (emphasis in original).
NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.      11



    Nobel timely appealed the anticipation finding. On
appeal, Nobel challenges the Board’s holding that the
ABT Catalog is prior art, its claim construction, and its
anticipation analysis. We address each issue in turn.
                       DISCUSSION
                      I. Jurisdiction
    We first address whether we have jurisdiction over
the entirety of Nobel’s appeal. In SAS Institute, Inc. v.
Iancu, the Supreme Court held that 35 U.S.C. § 318(a)
prohibits the Board from instituting IPR on fewer than all
claims challenged in a petition. 138 S. Ct. 1348, 1353
(2018). Here, in accordance with its pre-SAS regulations,
the Board instituted IPR on fewer than all challenged
claims and grounds. On appeal, neither party has re-
quested a remand for the Board to consider non-instituted
claims or grounds, or any other SAS-based relief.
    Since the Court’s decision in SAS, we have addressed
similar situations where no party has requested any SAS-
based relief. In those circumstances, we have held that
we have jurisdiction over the appeal, and that any Admin-
istrative Procedure Act error committed by the Board in
partially instituting IPR was waivable. See, e.g., PGS
Geophysical AS v. Iancu, 891 F.3d 1354, 1359–62 (Fed.
Cir. 2018); Jazz Pharm., Inc. v. Amneal Pharm., LLC, 895
F.3d 1347, 1354–55 (Fed. Cir. 2018). In accordance with
our precedent, we conclude that we have jurisdiction over
Nobel’s appeal under 28 U.S.C. § 1295(a)(4)(A) and are
not obliged to reopen non-instituted claims or grounds.
We see no reason to exercise any discretion to remand the
non-instituted claims or grounds sua sponte.
                     II. Anticipation
    We now turn to the merits of the appeal. We review
the Board’s legal determinations de novo, In re Elsner,
381 F.3d 1125, 1127 (Fed. Cir. 2004), but we review the
Board’s factual findings underlying those determinations
12        NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.




for substantial evidence, In re Gartside, 203 F.3d 1305,
1316 (Fed. Cir. 2000). A finding is supported by substan-
tial evidence if a reasonable mind might accept the evi-
dence to support the finding. Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938).
    Anticipation is a question of fact that we review for
substantial evidence. In re Rambus, Inc., 753 F.3d 1253,
1256 (Fed. Cir. 2014). A prior art document may antici-
pate a claim if it describes every element of the claimed
invention, either expressly or inherently. Husky Injection
Molding Sys. Ltd. v. Athena Automation Ltd., 838 F.3d
1236, 1248 (Fed. Cir. 2016).
                  A. Public Accessibility
    The parties dispute whether the ABT Catalog quali-
fies as a “printed publication” under pre-AIA § 102(b).
Whether a reference qualifies as a “printed publication” is
a legal conclusion based on underlying factual findings.
Jazz Pharm., 895 F.3d at 1356. The underlying factual
findings include whether a reference was publicly accessi-
ble. In re NTP, Inc., 654 F.3d 1279, 1296 (Fed. Cir. 2011).
In an IPR, the petitioner bears the burden of establishing
by a preponderance of the evidence that a particular
document is a printed publication. Medtronic, Inc. v.
Barry, 891 F.3d 1368, 1380 (Fed. Cir. 2018).
      “Because there are many ways in which a reference
may be disseminated to the interested public, ‘public
accessibility’ has been called the touchstone in determin-
ing whether a reference constitutes a ‘printed publication’
. . . .” In re Hall, 781 F.2d 897, 898–99 (Fed. Cir. 1986).
“A reference will be considered publicly accessible if it was
disseminated or otherwise made available to the extent
that persons interested and ordinarily skilled in the
subject matter or art exercising reasonable diligence can
locate it.” Medtronic, 891 F.3d at 1380 (internal quotation
marks and citations omitted). “Whether a reference is
publicly accessible is determined on a case-by-case basis
NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.        13



based on the ‘facts and circumstances surrounding the
reference’s disclosure to members of the public.’” In re
Lister, 583 F.3d 1307, 1311 (Fed. Cir. 2009) (quoting In re
Klopfenstein, 380 F.3d 1345, 1350 (Fed. Cir. 2004)).
     We first note that we are not bound by our prior af-
firmance of the ITC’s holding that there was insufficient
evidence to find pre-critical date public accessibility. The
parties agree that our prior decision is not binding on this
factual issue. Oral Arg. at 13:05–14:17, 26:49–28:36. As
the Board correctly observed, the evidentiary standard in
its proceedings, preponderance of the evidence, is differ-
ent from the higher standard applicable in ITC proceed-
ings, clear and convincing evidence. See Board Decision,
2017 Pat. App. LEXIS 8329, at *22. The Board also had
“more evidence on this issue than what was before the
ITC.” Id. Moreover, we apply a substantial evidence
standard of review to both ITC and Board factual find-
ings, “and the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an admin-
istrative agency’s finding from being supported by sub-
stantial evidence.” Consolo v. Fed. Mar. Comm’n, 383
U.S. 607, 620 (1966). We thus conclude that our prior
affirmance of the ITC’s judgment on a different factual
record with a different burden of proof does not dictate
the outcome of this appeal.
    Nobel argues that the Board’s finding that the ABT
Catalog was publicly accessible at the March 2003 IDS
Conference lacks substantial evidence. Nobel contends
that the testimony of Chakir, Hantman, and Fromovich
does not establish public accessibility and, in any event,
the testimony is uncorroborated. Nobel maintains that
the Board legally erred by failing to consider the required
factors relating to the alleged public disclosure.
    Instradent responds that substantial evidence sup-
ports the Board’s finding of pre-critical date public acces-
sibility.  According to Instradent, the testimony of
14        NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.




Hantman and Chakir established that the ABT Catalog
was freely distributed at the March 2003 IDS Conference
and was sufficiently corroborated. Instradent contends
that the other evidence before the Board, including
Fromovich’s testimony, also supports the Board’s finding
of public accessibility. Instradent further argues that the
Board correctly considered all relevant factors in making
its determination.
     We agree with Instradent that substantial evidence
supports the Board’s finding that the ABT Catalog was
publicly accessible prior to the critical date. The Board
credited Chakir and Hantman’s testimony that Chakir
obtained a copy of the ABT Catalog at the March 2003
IDS Conference and that Hantman retained that copy in
his records thereafter. Hantman’s declaration included
excerpts of his copy of the ABT Catalog taken from his
files. The Board found that Hantman’s copy of the ABT
Catalog and the copy offered as prior art by Instradent in
the IPR had identical pages except for some handwriting
on the cover of Hantman’s copy. Nobel does not dispute
this finding. Hantman and Chakir provided specific
details as to why Chakir collected dental implant bro-
chures for Hantman at the March 2003 IDS Conference.
Hantman further provided specific details as to why he
remembers the circumstances under which he received
the ABT Catalog. The Board reasonably credited their
combined testimony as supporting its public accessibility
finding. See TypeRight Keyboard Corp. v. Microsoft Corp.,
374 F.3d 1151, 1159 (Fed. Cir. 2004) (stating that the
proffered testimony of two witnesses relating to public
accessibility at a trade show “is sufficient to support a
jury finding that the Marquardt document is prior art”).
    Additionally, the ABT Catalog has the date “March
2003” on its cover. Although the ABT Catalog’s date is
not dispositive of the date of public accessibility, its date
is relevant evidence that supports the Board’s finding of
public accessibility at the March 2003 IDS Conference.
NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.         15



Indeed, Fromovich testified that the catalog likely had the
March 2003 date because “the end of March 2003” is
“normally” when the IDS Conference is held in Germany.
J.A. 3485. No other basis for the March 2003 date has
been suggested by Nobel. Moreover, the Board found, and
Nobel does not dispute on appeal, that the ABT Catalog is
“the type[] of document[] normally intended for public
dissemination.” Board Decision, 2017 Pat. App. LEXIS
8329, at *29. On this record, the mere fact that Nobel
elicited testimony on cross-examination that Chakir and
Hantman attended post-critical date conferences where
ABT had a booth does not indicate that Hantman’s copy of
the ABT Catalog must have been obtained after the
critical date. Substantial evidence supports the Board’s
public accessibility finding.
     We reject Nobel’s contentions that Instradent adduced
no evidence concerning the circumstances of the ABT
Catalog’s disclosure at the IDS Conference, and that the
Board erred in its analysis of the factors relevant to public
accessibility. It is undisputed that ABT had a booth at
the 2003 IDS Conference. Although Chakir had no specif-
ic recollection of visiting the ABT booth or seeing the ABT
Catalog at 2003 IDS Conference, he testified that he
collected materials from “all the implant companies that
manufacture in Israel” at the conference, J.A. 5801, which
included ABT, J.A. 3412 ¶ 5. Chakir also testified about
his habitual practice in obtaining product literature,
including brochures, at the IDS Conference.             Such
“[e]vidence of a person’s habit . . . may be admitted to
prove that on a particular occasion the person . . . acted in
accordance with the habit or routine practice.” Fed. R.
Evid. 406; see Hall, 781 F.2d at 899 (holding “that compe-
tent evidence of the general library practice may be relied
upon to establish an approximate time when a thesis
became accessible”).
    Similarly, Nobel’s suggestion that Chakir could have
obtained the ABT Catalog “confidentially or under other
16        NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.




circumstances that would not legally constitute public
accessibility,” Appellant Br. 39, lacks evidentiary basis.
Chakir testified that gathering product literature, e.g.,
brochures, at the IDS Conference “is open to everyone”
and that such materials were “outside [the booth such]
that everyone on the corridor can take” them. J.A. 5796–
98. He further explained that attendees are given a “bag
to put [product literature] in . . . so they want you to take
it.” J.A. 5798. Hantman similarly testified that although
he and Fromovich “were not friends, so I couldn’t call him
and say, send me a catalog. . . . But in a -- in a big event
like [the IDS Conference] why not? You can take whatev-
er is open to the public. And Chakir was part of the
public.” J.A. 6075. The fact that Fromovich would not
have specially sent Hantman the ABT Catalog does not
imply that the ABT Catalog was not publicly distributed
at the 2003 IDS Conference.
    Additionally, Nobel points to no evidence that ABT
ever distributed the ABT Catalog with an expectation
that it would be kept confidential or not disseminated.
See Cordis Corp. v. Boston Sci. Corp., 561 F.3d 1319,
1333–34 (Fed. Cir. 2009) (explaining “a binding agree-
ment of confidentiality may defeat a finding of public
accessibility” and “‘[w]here professional and behavioral
norms entitle a party to a reasonable expectation’ that
information will not be copied or further distributed, ‘we
are more reluctant to find something a printed publica-
tion.’” (quoting Klopfenstein, 380 F.3d at 1350–51) (altera-
tion in original)). While Fromovich testified about how he
would have used the ABT Catalog if he had brought it to
the 2003 IDS Conference, e.g., showing it to potential
distributors and doctors, he did not mention confidentiali-
ty restrictions or any expectation that the disclosure
would not be shared.
   Moreover, it is undisputed on appeal that the ABT
Catalog is the type of document intended for public dis-
semination, and it bears no designations, such as “draft”
NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.         17



or “confidential,” that might suggest that it was not
intended for public distribution.        Indeed, Fromovich
testified that the ABT Catalog was provided to trainees
during training sessions without requiring them to sign a
confidentiality agreement. In short, Nobel has pointed to
no evidence in the record to dispute the above evidence
indicating that the ABT Catalog was distributed without
confidentiality obligations and not otherwise under cir-
cumstances that could undercut a finding of public acces-
sibility.   See, e.g., Medtronic, 891 F.3d at 1382
(summarizing “common [public accessibility] considera-
tions about materials that are distributed at meetings or
conferences”). We thus perceive no error in the Board’s
public accessibility finding on this basis.
    We next address the sufficiency of the corroboration of
the testimony. “[C]orroboration is required of any witness
whose testimony alone is asserted to invalidate a patent,
regardless of his or her level of interest.” Finnigan Corp.
v. Int’l Trade Comm’n, 180 F.3d 1354, 1369 (Fed. Cir.
1999). Corroborating evidence may include documentary
or testimonial evidence. See TransWeb, LLC v. 3M Inno-
vative Props. Co., 812 F.3d 1295, 1301 (Fed. Cir. 2016).
Circumstantial evidence can be sufficient corroboration.
Id. We have articulated a number of factors that may be
considered in assessing the sufficiency of the corrobora-
tion in prior invention or public use cases:

   (1) the relationship between the corroborating
   witness and the alleged prior user,
   (2) the time period between the event and trial,
   (3) the interest of the corroborating witness in the
   subject matter in suit,
   (4) contradiction or impeachment of the witness’
   testimony,
   (5) the extent and details of the corroborating tes-
   timony,
18         NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.




     (6) the witness’ familiarity with the subject matter
     of the patented invention and the prior use,
     (7) probability that a prior use could occur consid-
     ering the state of the art at the time,
     (8) impact of the invention on the industry, and
     the commercial value of its practice.
Woodland Tr. v. Flowertree Nursery, Inc., 148 F.3d 1368,
1371 (Fed. Cir. 1998). We apply a “rule of reason” analy-
sis to the corroboration requirement, id. at 1371, which
“involves an assessment of the totality of the circum-
stances including an evaluation of all pertinent evidence,”
Adenta GmbH v. OrthoArm, Inc., 501 F.3d 1364, 1372
(Fed. Cir. 2007). Sufficiency of corroboration is a question
of fact. Fleming v. Escort Inc., 774 F.3d 1371, 1377 (Fed.
Cir. 2014).
    We disagree with Nobel that corroboration is legally
insufficient in this case. The Board found “the testimony
of Messrs. Hantman and Chakir not only to be corroborat-
ed by each other, but also by a) the actual copy of the ABT
Catalog[, dated March 2003,] submitted as evidence and
b) Dr. Fromovich’s testimony that ABT operated a booth
at the March 2003 IDS conference.” Board Decision, 2017
Pat. App. LEXIS 8329, at *36 (citations omitted). Under
the circumstances of this case, this constitutes sufficient
corroboration of Hantman and Chakir’s testimony relat-
ing to the pre-critical date public accessibility of the ABT
Catalog. 3

   We reject Nobel’s contention that Chakir and Hant-
man’s testimony cannot be corroborated by each other’s
and Fromovich’s testimony. The testimony of one witness


     3  Because we view this evidence as sufficient for
corroboration purposes, we do not address the additional
evidence Instradent points to as additional corroboration.
NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.          19



may corroborate the testimony of another witness. See
Sandt Tech., Ltd. v. Resco Metal & Plastics Corp., 264
F.3d 1344, 1351 (Fed. Cir. 2001) (explaining in a pre-AIA
§ 102(g)(2) invalidity challenge that “oral testimony of
someone other than the alleged inventor may corroborate
an inventor’s testimony”). As discussed above, Chakir
and Hantman told a coherent story as to how Hantman
came into possession of his copy of the ABT Catalog
following the 2003 IDS Conference. Details of that story
were further corroborated by Fromovich’s testimony,
particularly that ABT had a booth at the 2003 IDS Con-
ference and the ABT Catalog has a “March 2003” date
because that is when the IDS Conference was normally
held.

    Furthermore, the Board found Chakir and Hantman’s
testimony credible and rejected Nobel’s credibility attacks
based on the alleged interest of the witnesses. See Board
Decision, 2017 Pat. App. LEXIS 8329, at *35–36. In
contrast, the Board found Fromovich’s failure to “recall
bringing a copy of the ABT Catalog to the March 2003
IDS Conference” and “several other critical details unfa-
vorable to [Nobel’s] position to lack credibility.” Id. at *32
n.10. Nobel has not identified a sufficient basis to disturb
the Board’s credibility determinations in this case. See
Adenta, 501 F.3d at 1372; Yorkey v. Diab, 601 F.3d 1279,
1284 (Fed. Cir. 2010) (explaining “the Board was well
within its discretion to give more credibility to [one wit-
ness’s] testimony over [another’s] unless no reasonable
trier of fact could have done so”).

    Nobel’s reliance on the The Barbed-Wire Patent, 143
U.S. 275 (1892), Finnigan, and Woodland is misplaced.
As we have previously observed, “there are no hard and
fast rules as to what constitutes sufficient corroboration,
and each case must be decided on its own facts.”
TransWeb, 812 F.3d at 1302. In The Barbed-Wire Patent
and Woodland, the particular testimony offered to prove
20        NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.




an allegedly invalidating prior public use that had oc-
curred decades earlier was held insufficient to satisfy the
high burden required to invalidate a patent. See Barbed-
Wire, 143 U.S. at 288–89 (finding that the witnesses gave
inconsistent and insufficient testimony as to the sub-
stance of the purported prior art public use); Woodland,
148 F.3d at 1373 (“tak[ing] note of the absence of any
physical record to support the oral evidence” “despite the
asserted many years of commercial and public use”). In
Finnigan, we held that the completely uncorroborated
testimony of one witness concerning his alleged prior
public use was insufficient as a matter of law to establish
invalidity of the patent. 180 F.3d at 1370. This situation,
involving corroboration of a document’s date of public
accessibility and the testimony of multiple witnesses, is
factually distinguishable.

    We further reject Nobel’s argument that the Board
improperly relied upon the ABT Catalog itself in its
corroboration analysis, and conclude that its reliance on
Lister, Adenta, and Fleming is misplaced. While “the
mere existence” of an “undated reference” standing alone
is not “prima facie evidence that it was available prior to
the applicant’s critical date,” Lister, 583 F.3d at 1317, this
is not such a situation. Unlike the hypothetical undated
reference in Lister, the undated photograph in Adenta,
and the testimony relating to prior invention in Fleming,
the asserted reference has a date before the critical date
printed on it. And, as discussed above, there is no indica-
tion on the face of the document that it was unlikely to
have been publicly available as of that date. The date on
the reference matching the date the witnesses testified it
was publicly accessible constitutes corroboration of public
accessibility as of that date. The fact that Hantman had a
copy of the ABT Catalog in his files further corroborates
his testimony that he obtained a copy of the same docu-
ment asserted to be prior art in the IPR. Moreover, the
rule of reason “analysis ‘does not require that every detail
NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.        21



of the testimony be independently and conclusively sup-
ported’ by the corroborating evidence.” TransWeb, 812
F.3d at 1301–02 (quoting Ohio Willow Wood Co. v. Alps
S., 735 F.3d 1333, 1348 (Fed. Cir. 2013)).

                 C. Claim Construction 4
    Nobel argues that the Board’s anticipation findings
for claims 1–5 should be reversed because the Board
relied on an erroneous construction of the frustoconical
limitation. In an IPR, a patent claim is given “its broad-
est reasonable construction in light of the specification of
the patent in which it appears.” Cuozzo Speed Techs.,
LLC v. Lee, 136 S. Ct. 2131, 2142 (2016) (quoting 37
C.F.R. § 42.100(b)). We review the Board’s ultimate claim
constructions de novo and its underlying factual determi-
nations involving extrinsic evidence for substantial evi-
dence. Skky, Inc. v. MindGeek, s.a.r.l., 859 F.3d 1014,
1019 (Fed. Cir. 2017), cert. denied, 138 S. Ct. 1693 (2018).
Here, because the intrinsic record alone determines the
proper construction of the frustoconical limitation, we
review the Board’s construction de novo. See Shire Dev.,
LLC v. Watson Pharm., Inc., 787 F.3d 1359, 1364, 1368
(Fed. Cir. 2015) (citing Teva Pharm. USA Inc. v. Sandoz,
Inc., 135 S. Ct. 831, 840–42 (2015)).


   4    Because Nobel does not argue dependent claims
3–5 “separately or attempt to distinguish them from the
prior art,” they “stand or fall with their attendant inde-
pendent claim,” i.e., claim 1. In re Warsaw Orthopedic,
Inc., 832 F.3d 1327, 1330 n.3 (Fed. Cir. 2016); see also In
re Margolis, 785 F.2d 1029, 1030 (Fed. Cir. 1986) (stating
that where dependent claims “were not argued separately,
[they] need not be separately considered”). Similarly,
because Nobel makes no additional argument with re-
spect to claim 19, we affirm the Board’s finding of antici-
pation given our rejection of Nobel’s public accessibility
arguments.
22        NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.




    Nobel argues that the Board’s construction of the
frustoconical limitation is overly broad because it “in-
clude[s] coronal regions on dental implants with merely
‘partly’ frustoconical shapes.” Appellant Br. 49–50. Nobel
maintains that the Board’s construction conflicts with the
contextual claim language, which specifies an overall
shape of the coronal region. Nobel contends that the
overly broad construction allows tiny bevels and manufac-
turing artifacts, i.e., edge breaks, that are not contem-
plated by the written description to be encompassed by
the claims, and thus ignores the specification’s teachings
that the implant was designed to allow relapse to promote
high primary stability in bone. According to Nobel, the
correct construction is “the coronal region as a whole has
a frustoconical shape.” Appellant Br. 50.
    Instradent responds that the Board correctly con-
strued the frustoconical limitation in light of the intrinsic
record. According to Instradent, the Board correctly
construed “having” in the limitation as “open-ended,”
“similar to how the terms ‘comprising’ and ‘including’ are
construed.” Appellee Br. 47 (citing Lampi Corp. v. Am.
Power Prods., Inc., 228 F.3d 1365, 1376 (Fed. Cir. 2000)).
    We agree with Instradent that the Board’s construc-
tion of the frustoconical limitation was reasonable. Claim
1 reads in relevant part: “the coronal region having a
frustoconical shape [frustoconical limitation] wherein a
diameter of an apical end of the coronal region is larger
than a diameter of a coronal end of the coronal region.”
’977 patent col. 17 ll. 53–56 (emphasis added). Contrary
to Nobel’s contention, the language “having a frustoconi-
cal shape” does not serve as an adjective that modifies
“coronal region” to require that the whole region have
that shape. We interpret “having” in light of the claim
language context and the specification to determine
whether it is open or closed. See, e.g., Lampi, 228 F.3d at
1376; Crystal Semiconductor Corp. v. TriTech Microelec-
tronics Int’l, Inc., 246 F.3d 1336, 1348 (Fed. Cir. 2001).
NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.         23



Here, both the claim context and the specification demon-
strate that the Board correctly determined that “having”
is open-ended. The coronal region thus must contain a
frustoconical shape, but other shapes are not excluded.
    Turning first to the claim language, the frustoconical
limitation itself does not clearly require that the entire
coronal region have a frustoconical shape. The wherein
clause similarly does not demonstrate that the entire
coronal region must have a frustoconical shape. The
specified relative diameters of the apical and coronal ends
of the coronal region do not limit the coronal region as a
whole to a particular shape. Moreover, disclaimed inde-
pendent claim 9 describes “a variable height being pro-
gressively expanded substantially along the entire
threaded region,” ’977 patent col. 18 ll. 53–54 (emphasis
added), demonstrating that the patentee knew how to
specify characteristics for an entire region when it so
chose. It did not so choose in the frustoconical limitation.
     The written description further supports a construc-
tion that includes both partly and wholly frustoconical
coronal regions. It is undisputed that the ’977 patent
discloses figures with both wholly, e.g., figure 12, and
partly, e.g., figures 8 and 9, frustoconical coronal regions.
It is further undisputed that figures 8 and 9 are encom-
passed by the Board’s construction, but would be excluded
by Nobel’s proposed construction. Although it is true that
“[t]he fact that one construction may cover more embodi-
ments than another does not categorically render that
construction reasonable,” PPC Broadband, Inc. v. Corning
Optical Commc’ns RF, LLC, 815 F.3d 747, 755 (Fed. Cir.
2016), “there is a strong presumption against a claim
construction that excludes a disclosed embodiment,” In re
Katz Interactive Call Processing Patent Litig., 639 F.3d
1303, 1324 (Fed. Cir. 2011). Because the claim language
does not require the exclusion of those embodiments, and
there is no basis in the intrinsic record for excluding
them, Nobel has not overcome this presumption.
24        NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.




     Accepting arguendo Nobel’s argument that claim 19
reads on figures 8 and 9 does not yield a different conclu-
sion. While we have observed that “[i]t is often the case
that different claims are directed to and cover different
disclosed embodiments,” we “ha[ve] cautioned against
interpreting a claim term in a way that excludes disclosed
embodiments, when that term has multiple ordinary
meanings consistent with the intrinsic record.” Helmsder-
fer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1383
(Fed. Cir. 2008); see also Verizon Servs. Corp. v. Vonage
Holdings Corp., 503 F.3d 1295, 1305 (Fed. Cir. 2007) (“We
normally do not interpret claim terms in a way that
excludes disclosed examples in the specification.”). Here,
“having” can be interpreted consistently with the intrinsic
record to cover figures 8 and 9, further demonstrating the
correctness of the Board’s construction.
    We also reject Nobel’s arguments premised on its ex-
pert’s testimony relating to edge breaks and mating
bevels being too small to permit bone relapse. Nobel
alleges that the patent teaches that the tapered coronal
region allows the bone, which is compressed during inser-
tion of the implant, to spring back, i.e., relapse, over the
top of the implant with attendant benefits. Assuming
arguendo such functional considerations should be con-
sidered here, Nobel has not demonstrated that the
Board’s construction would encompass implants that did
not satisfy that functional requirement. The ’977 patent
teaches that “[t]he height of the coronally tapered region
85 is 0.5–4 mm.” ’977 patent col. 12 ll. 12–13. Nobel has
pointed to no evidence that edge breaks and mating
bevels would not fall within this height range. See Board
Decision, 2017 Pat. App. LEXIS 8329, at *17. Indeed,
Nobel’s expert did not explain what size bevel would be
too small. The Board did not err in rejecting Nobel’s
arguments based on this “unspecific expert testimony.”
Arendi S.A.R.L. v. Apple Inc., 832 F.3d 1355, 1366 (Fed.
Cir. 2016), cert. denied sub nom. Google Inc. v. Arendi
NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.        25



S.A.R.L., 137 S. Ct. 1329 (2017); see also Skky, 859 F.3d
at 1022 (explaining “the Board was not required to credit
[appellant]’s expert evidence simply because [appellant]
offered it”).
    Similarly, the Board’s construction does not read out
the frustoconical limitation. The Board clarified that its
“construction [does not] permit[] any inconsequential
variations in edge sharpness to be a ‘frustoconical re-
gion.’” Board Decision, 2017 Pat. App. LEXIS 8329, at
*17 (emphasis in original); accord Rehearing Decision,
2017 WL 1969639, at *1. Nobel points to no evidence that
the bevel relied upon by the Board in its anticipation
analysis is outside of the size range for the coronal region
taught by the ’977 patent. See ’977 patent col. 12 ll. 12–
13.
    Nobel’s argument with respect to the prosecution his-
tory was untimely raised, and the Board thus did not pass
upon it. Rehearing Decision, 2017 WL 1969639, at *2.
Nobel has not explained why we should consider this
untimely argument for the first time on appeal. We thus
decline to do so. See HTC Corp. v. IPCom GmbH & Co.,
KG, 667 F.3d 1270, 1282–83 (Fed. Cir. 2012).
                        D. Claim 2
    Nobel argues that the Board’s finding that claim 2 is
anticipated lacks substantial evidence because the ABT
Catalog provides no teaching or depiction that the bevel of
the 5 mm SPI implant has any surface treatment de-
signed to enhance osseointegration. Instradent responds
that the Board’s anticipation finding is supported by
substantial evidence.
    We agree with Instradent that the Board’s finding
that claim 2 was anticipated is supported by substantial
evidence. As the Board stated, “[t]here is no dispute that
the acid etching taught by the ABT Catalog would result
in a ‘surface configured to be in contact with bone.’”
26        NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.




Board Decision, 2017 Pat. App. LEXIS 8329, at *45.
Instradent’s expert testified that the acid etching teaching
applied to the entire top third of the coronal region,
including the frustoconically shaped bevel, and that using
the normal platform the bone would grow over the ex-
posed bevel of the 5 mm SPI implant. This testimony in
combination with the express disclosure of the ABT
Catalog is substantial evidence sufficient to support the
Board’s anticipation finding.
    We have considered Nobel’s remaining arguments,
but conclude that they are without merit.
                       CONCLUSION
    For the reasons set forth above, we affirm the Board’s
anticipation finding.
                       AFFIRMED
