Pictometry International Corporation v. Roofr Inc.

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PICTOMETRY INTERNATIONAL CORPORATION,
Appellant
v.
ROOFR INC.,
Appellee
______________________
2024-2321
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2023-
00436.
______________________
Decided: May 22, 2026
______________________
RICHARD CRUDO, Sterne Kessler Goldstein & Fox
PLLC, Washington, DC, argued for appellant. Also repre-
sented by RICHARD M. BEMBEN, J ENNIFER CHAGNON,
WILLIAM MILLIKEN, STEVEN P APPAS , MICHAEL D. SPECHT ,
J ONATHAN T UMINARO.
RON HAGIZ, Quinn Emanuel Urquhart & Sullivan,
LLP, New York, NY, argued for appellee. Also represented
by J AMES M. G LASS; YURY K APGAN, Los Angeles, CA;
Q UINCY L U, Seattle, WA.
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PICTOMETRY INTERNATIONAL CORPORATION v. ROOFR INC. 2
______________________
Before T ARANTO, HUGHES , and CUNNINGHAM , Circuit
Judges.
T ARANTO, Circuit Judge.
Pictometry International Corp. owns U.S. Patent No.
9,183,538, which claims, in various forms, a method for
measuring roofs using aerial imagery. The method helps
contractors estimate roof area, and hence the cost of a roof-
ing project, without the need to measure the roof onsite.
The patented method involves estimating roof area based
on the roof’s “predominant pitch” and “footprint.”
In 2023, Roofr Inc. successfully petitioned for an inter
partes review (IPR) of all claims of the ’538 patent under
35 U.S.C. §§ 311–19, and the Patent Trial and Appeal
Board held all claims unpatentable for obviousness over
Roofr’s proposed prior-art combinations. See Roofr Inc. v.
Pictometry International Corp., No. IPR2023-00436, 2024
WL 3379549 (P.T.A.B. July 11, 2024) (Decision). Pictome-
try appeals, challenging the Board’s understanding of “pre-
dominant pitch.” We affirm.
I
A
The ’538 patent describes a procedure for estimating
the area of a roof using the roof’s “footprint” and “pitch.”
’538 patent, col. 12, lines 37–39. The patent does not ex-
pressly define either term. But the specification implies
that a “footprint” is the roof’s two-dimensional boundary or
outline (seen from above). See id., col. 12, lines 8–10. That
term is not in dispute on appeal. The specification makes
clear that a “pitch” and “pitch factor” designate the roof’s
degree of inclination: the “pitch” is its rise (vertical meas-
ure) divided by its run (horizontal measure); the “pitch fac-
tor” is easily derived from “pitch”—starting from the right
triangle formed by the rise and run, it is the length of the
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PICTOMETRY INTERNATIONAL CORPORATION v. ROOFR INC. 3
hypotenuse, divided by the run. See id., Fig. 7; col. 12, lines
12–20; Pictometry Opening Br. at 8. The area of a roof sec-
tion can be calculated using the footprint and the pitch fac-
tor. See Pictometry Opening Br. at 9; J.A. 1940–41, at
7:21–9:4 (Pictometry’s expert).
Roofs often have multiple sections with varying
pitches, in which case there would be multiple pitch fac-
tors. The patent proposes using, in the area calculation, a
“predominant pitch value.” ’538 patent, col. 12, lines 9–10;
Fig. 6. It also describes one way to calculate the predomi-
nant pitch factor by identifying pitch factors for portions of
a roof and appropriately weighting them (by the percent of
the overall roof having that pitch) and summing them to
arrive at a “total weighted pitch value,” converting the re-
sult to a predominant pitch factor. Id., col. 12, lines 14–39.
The patent has related claims in method form, in sys-
tem form, and in the form of a computer readable medium
with code to execute the method. They call for using infor-
mation from images of roofs. Claim 1 is representative for
this appeal:
1. One or more non-transitory computer readable
medium storing a set of computer executable in-
structions for running on one or more computer
systems that when executed cause the one or more
computer systems to:
identify a geographic location of a roof;
determine a footprint and predominant
pitch of the roof by analyzing one or more
image showing the roof;
determine an estimated roofing area of the
roof based on the predominant pitch and
the footprint of the roof; and
generate a roof report for determination of an
amount of materials needed for a construction
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PICTOMETRY INTERNATIONAL CORPORATION v. ROOFR INC. 4
project, wherein the roof report includes at least
one image showing the roof and the estimated
roofing area of the roof.
’538 patent, col. 15, lines 21–32 (emphases added).
Claims 11 and 18 are also at issue. Claim 11 depends
on claim 10 (which refers to the “predominant pitch” of
claim 1) and states that “each pitch value is associated with
an estimated percentage of roof area to provide an average
pitch value.” Id., col. 16, lines 20–23 (emphasis added).1
Claim 18 describes the “roofing estimate method” of an ear-
lier claim, “wherein the predominant pitch is based on a
weighted average of individual pitch factors for two or
more portions of the roof.” Id., col. 17, lines 16–18 (empha-
sis added). The “predominant pitch” of claim 18 is rele-
vantly similar to that of claim 1.
B
In February 2023, Roofr petitioned for an IPR, chal-
lenging all claims of the ’538 patent for obviousness over
several prior-art references. See J.A. 59. To demonstrate
obviousness for claims 1 and 11, Roofr relied on a 1999 ar-
ticle published by the United States Army Corps of Engi-
neers (Bailey) and U.S. Patent Application Publication No.
2008/0262789 (Pershing). See J.A. 88. Roofr relied on
those same references, as well as one other, to show obvi-
ousness for claim 18. See Decision, at *1. Relevant to this
appeal, Roofr argued that Bailey, in speaking of a
1 Although claim 11 does not expressly require a
“weighted average,” instead requiring only an “average”
pitch (referring to claim 10’s “predominant pitch” value, see
’538 patent, col. 16, lines 15–23), the Board understood
claim 11 to “require using a weighted average to determine
predominant pitch.” Decision, at *4. Pictometry does not
dispute the Board’s interpretation of claim 11 as requiring
a weighted average. See Pictometry Opening Br. at 47.
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PICTOMETRY INTERNATIONAL CORPORATION v. ROOFR INC. 5
“predominant slope,” discloses claim 1’s “predominant
pitch” and that a relevant artisan would have been moti-
vated to combine Bailey’s teaching with Pershing’s teach-
ing of roof area calculations to estimate roofing area. J.A.
88, 101–02. Roofr also argued that a relevant artisan
would understand that a predominant pitch can be calcu-
lated using a weighted average of pitch values. J.A. 118–
20. Pictometry opposed institution. J.A. 179, 214–15.
The Board instituted the requested review, and in so
doing, the Board responded to a pre-institution argument
from Pictometry by stating that “[n]othing in the claims’
plain language limits predominant pitch to a weighted av-
erage.” Roofr, Inc. v. Pictometry International Corp.,
No. IPR2023-00436, 2023 WL 5153636, at *4 (P.T.A.B.
July 21, 2023) (Institution Decision) (emphasis added). Af-
ter institution, Pictometry did not argue in its papers for a
claim construction for the term “predominant pitch.” See
J.A. 330–39. Instead, Pictometry argued only that Bailey
did not disclose using a predominant pitch in a roof area
calculation. See id. (patent owner’s response); J.A. 428–30
(sur-reply). At oral argument before the Board, however,
Pictometry asserted that there is an issue of claim con-
struction because “Bailey doesn’t tell you what predomi-
nant slope even means.” J.A. 543–44.2
In July 2024, the Board issued its final written deci-
sion, holding all claims unpatentable for obviousness. De-
cision, at *1. As now relevant, the Board found that
Bailey’s teaching of a “predominant slope” disclosed the
claimed “predominant pitch.” Id. at *3–4. For dependent
claims 11 and 18, which the Board understood to “require
using a weighted average to determine predominant pitch,”
the Board, relying on expert testimony and a dictionary
2 The parties agree, for the purpose of this appeal,
that “pitch” and “slope” are synonymous. See Pictometry
Opening Br. at 8 n.1; J.A. 99 (petition).
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PICTOMETRY INTERNATIONAL CORPORATION v. ROOFR INC. 6
cited by Roofr in its petition, concluded that a relevant ar-
tisan employing the patented method would know that a
weighted average is one way to calculate a predominant
pitch. Id. at *4–5.
Pictometry timely appealed the Board’s final written
decision. We have jurisdiction under 35 U.S.C. §§ 141(c),
319 and 28 U.S.C. § 1295(a)(4)(A).
II
“We review the Board’s legal determinations de novo
and the Board’s factual findings for substantial-evidence
support.” Yita LLC v. MacNeil IP LLC, 69 F.4th 1356, 1363
(Fed. Cir. 2023). The ultimate question of obviousness is a
question of law, and the Board’s resolution is subject to a
de novo standard of review, but the answer depends on un-
derlying facts, for which the Board’s findings are reviewed
only for substantial-evidence support, id., which is “such
relevant evidence as a reasonable mind might accept as ad-
equate to support a conclusion,” Consolidated Edison Co. of
New York v. National Labor Relations Board, 305 U.S. 197,
229 (1938).
A
Pictometry argues that the Board erred in its interpre-
tation of claim 1’s “predominant pitch” limitation. In its
decision, the Board did not expressly adopt a construction
of “predominant” or “predominant pitch,” but the Board
concluded that Bailey teaches a “predominant slope,”
which the Board understood as equivalent to a “predomi-
nant pitch.” See Decision, at *2 (citing J.A. 1678 § 33)). On
appeal, Pictometry now contends that a “predominant
pitch” value must be construed to require accounting for
the pitch of every roof section across the entire roof. See
Pictometry Opening Br. at 31–32, 35, 37–38 (citing J.A.
1540 ¶ 94 (Roofr’s expert declaration stating that a rele-
vant artisan would have “account[ed] for all of the pitches
of a roof” when calculating “a single ‘predominant slope’”)).
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PICTOMETRY INTERNATIONAL CORPORATION v. ROOFR INC. 7
But even putting aside whether Pictometry adequately
preserved the point as a claim-construction contention, de-
spite not having squarely presented such a claim-construc-
tion position after institution (as required by Institution
Decision, at *6), we see no reversible error by the Board.
With no express construction proposed, the Board
could begin with the “ordinary and customary meaning” of
“predominant pitch.” See Phillips v. AWH Corp., 415 F.3d
1303, 1312–13 (Fed. Cir. 2005) (en banc). The word “pre-
dominant” is not on its face limited to a weighted average
or to an analysis of pitches of all portions of a roof; it could,
for example, refer to the pitch for the lion’s share of the
roof, and in a context where a roof measurement (from pho-
tographs) may be valuable for the patent’s goals even if not
precise, that might be good enough and helpfully simplify
the analysis. Regardless, the Board impliedly understood
from the petition that Bailey’s “predominant slope” could
be interpreted by a relevant artisan to cover several possi-
bilities, including a weighted average of all the roof’s
pitches, an understanding supported by substantial evi-
dence. See Decision, at *3–5 (citing J.A. 89–90, 99–102 (pe-
tition)); see infra pp. 8–9. Because a weighted average of
all pitches falls within the scope of the ordinary meaning
of “predominant pitch,” and Bailey is reasonably read to
teach such a predominant pitch, we see no reversible error
even if a full-roof weighted-average understanding is re-
quired.
The Board, adopting Roofr’s motivation to combine Bai-
ley with Pershing, relied on Bailey’s predominant slope,
combined with Pershing’s use of measurements deter-
mined from aerial images in an area calculation, to con-
clude that claim 1 would have been obvious. Decision, at
*4; see J.A. 88. That conclusion is reasonable and sup-
ported by substantial evidence.
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PICTOMETRY INTERNATIONAL CORPORATION v. ROOFR INC. 8
B
Relatedly, Pictometry argues that the Board erred in
holding dependent claims 11 and 18 unpatentable for obvi-
ousness because the cited prior art does not expressly dis-
close the “weighted average” limitation. The Board,
however, concluded that it would have been obvious to a
relevant artisan measuring a roof’s area to calculate the
predominant pitch using a weighted average. See Decision,
at *4. In its decision, the Board relied in part on testimony
from Roofr’s expert that a skilled artisan would be moti-
vated to use weighted averages, a known technique, to cal-
culate a predominant pitch, see J.A. 1541–42 ¶ 97, and in
part on a construction dictionary, see J.A. 1933, to conclude
that weighted averages were commonly known and used in
the roofing construction context. See Decision, at *4; J.A.
119–20 (Roofr’s petition citing construction dictionary and
expert).
We see no reversible error in the Board’s obviousness
holding for claims 11 and 18. Although Bailey does not ex-
pressly disclose using a weighted average to determine pre-
dominant pitch, the understanding of a piece of prior art is
a factual matter, depending on how a relevant artisan
would understand it. See Airbus S.A.S. v. Firepass Corp.,
941 F.3d 1374, 1383–84 (Fed. Cir. 2019); In re Warsaw Or-
thopedic, Inc., 832 F.3d 1327, 1332 (Fed. Cir. 2016). In any
event, the Board can “take account of the inferences and
creative steps” that a relevant artisan “would employ.”
KSR International Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007). Substantial evidence supports the Board’s conclu-
sion that using a weighted average to calculate predomi-
nant pitch would have “been nothing more than the
application of a known technique to yield a predictable re-
sult.” Decision, at *4 (quoting J.A. 408). Moreover, Pictom-
etry does not argue that the Board abused its discretion in
interpreting the petition’s asserted combination as involv-
ing such background knowledge. Cf. Netflix, Inc. v. DivX,
LLC, 84 F.4th 1371, 1376–78 (Fed. Cir. 2023).
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PICTOMETRY INTERNATIONAL CORPORATION v. ROOFR INC. 9
Finally, contrary to Pictometry’s argument, the Board’s
consideration of Bailey’s “slope-factor chart” in its analysis
of claim 18 was not erroneous. Roofr relied on Bailey’s
“slope-factor chart” to show that a relevant artisan would
know that slope can be represented as a pitch factor, and,
with some conversion, pitch factor can be used in a roof
area calculation. See J.A. 408–09; J.A. 1551–52 ¶ 127; J.A.
1798 Table 3. The Board understood that Roofr relied on
more than just the Bailey reference for determining pitch.
See Decision, at *4. Because the Board relied on a combi-
nation of references for its claim 18 obviousness determi-
nation, we see no error in its passing citation to Bailey’s
slope-factor chart.
III
We have considered Pictometry’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the decision of the Board.
AFFIRMED
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