Keysight Technologies, Inc. v. Centripetal Networks, LLC

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KEYSIGHT TECHNOLOGIES, INC.,
Appellant
v.
CENTRIPETAL NETWORKS, LLC,
Appellee
______________________
2025-1053
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2023-
00448.
______________________
Decided: July 21, 2026
______________________
J ONATHAN I AIN MAX D ETRIXHE , Reed Smith LLP, San
Francisco, CA, argued for appellant. Also represented by
J ONAH D. MITCHELL ; G ERARD M. D ONOVAN, Washington,
DC; J AMES CHRISTOPHER MARTIN, Pittsburgh, PA.
ANDREI I ANCU, Sullivan & Cromwell LLP, Los Angeles,
CA, argued for appellee. Also represented by COOPER
F RANKLIN G ODFREY , D ANIEL J. RICHARDSON, Washington,
DC; AVIV S. HALPERN, Palo Alto, CA; AUSTIN P HILIP
MAYRON, L AURIE S TEMPLER, New York, NY; J ENNA
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KEYSIGHT TECHNOLOGIES, INC. v.
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F ULLER, J EFFREY P RICE, Herbert Smith Freehills Kramer
(US) LLP, New York, NY; J AMES R. HANNAH , Redwood
Shores, CA.
______________________
Before L OURIE, C UNNINGHAM , and STARK, Circuit Judges.
L OURIE, Circuit Judge.
Keysight Technologies, Inc. (“Keysight”) appeals from
a Final Written Decision of the United States Patent and
Trademark Office Patent Trial and Appeal Board (“the
Board”) determining that Keysight failed to meet its bur-
den to show that claims 6, 14, 22, 30, and 33 of Centripetal
Networks, LLC’s (“Centripetal’s”) U.S. Patent 11,012,474
(“the ’474 patent”) would have been obvious at the time of
the effective filing date. J.A. 1–111 (“Decision”). For the
following reasons, we affirm.
BACKGROUND
The ’474 patent is directed to “[m]ethods and systems
for protecting a secured network” using “packet security
gateways.” ’474 patent at Abstract. Packet security gate-
ways are generally comprised of a “computing device con-
figured to receive packets and perform a packet
transformation function on the packets.” Id. col. 5 ll. 1–3.
Claims 6, 14, 22, and 30 include the limitation “wherein the
packet security gateway is a [local area network (“LAN”)]
switch.” Id. col. 26 ll. 22–23, col. 27 ll. 36–37, col. 28 ll. 50–
51, col. 30 ll. 30–31. And claim 33 includes the limitation
“wherein at least one packet transformation function is
configured to route associated packets to a monitoring de-
vice.” Id. col. 30 ll. 49–51.
Keysight petitioned for inter partes review (“IPR”), al-
leging that all claims of the ’474 patent were obvious over
various combinations of prior art. J.A. 275–354 (petition
for IPR). Two of the asserted prior art references are rele-
vant here: U.S. Patent Application Publication
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2011/0072506 (“Law”), J.A. 892–929, and a publication ti-
tled “Analysis of Firewall Policy Rules Using Data Mining
Techniques” (“Golnabi”), J.A. 1028–37.
Keysight’s petition included a header in the argument
section of its brief alleging that “Law in view of Golnabi
renders obvious claims 1–3, 5–7, 9–11, 13–15, 17–19, 21–
23, 25–27, 29–31, [and] 33,” J.A. 276, 291, and a chart, re-
produced below, alleging the same, J.A. 283.
Keysight’s petition included no other reference to claims 6,
14, 22, 30, or 33. That is, the petition contained no argu-
ments specific to the unpatentability of claims 6, 14, 22, 30,
or 33.
The Board granted institution of Keysight’s IPR peti-
tion. J.A. 1278–1358 (Institution Decision). Consequently,
the Board was required to institute an IPR with respect to
every claim for which the petition sought review. See SAS
Inst. Inc. v. Iancu, 584 U.S. 357, 370 (2018) (“There is no
room in this scheme for a wholly unmentioned ‘partial in-
stitution’ power that lets the Director select only some chal-
lenged claims for decision.”). In its Institution Decision,
the Board explained that “[f]or claims 2, 3, 5–7, 10, 11,
13–15, 18, 19, 21–23, 26, 27, 29–31, and 33, [Keysight] pro-
vides an analysis supported by [its expert’s] testimony
about how the combined disclosures in Law and Golnabi
teach the inventions covered by the claims.” J.A. 1334.
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And it noted that “[Centripetal] makes no arguments spe-
cific to” any of those claims. Id. The Board nonetheless
determined, at least for purposes of institution, that
“[Keysight] establishe[d] sufficiently that the combined
disclosures in Law and Golnabi teach the inventions cov-
ered by” those claims. Id.
Thereafter, the Board heard oral argument, and one
administrative patent judge questioned Keysight about
claims 6, 14, 22, 30, and 33, noting that he “did not see in
the petition any arguments on those” claims. J.A. 1940.
Keysight acknowledged that “[t]he petition could have been
more clear,” but argued that the limitations of those claims
“are addressed in the petition” and proceeded to belatedly
argue the merits of the unpatentability of those claims.
J.A. 1960–61. The Board subsequently issued a Final Writ-
ten Decision determining that all claims but 6, 14, 22, 30,
and 33 were unpatentable. Decision, J.A. 109–10. The
Board explained that none of Keysight’s petition, reply, or
expert declaration addressed the obviousness of those
claims, and Keysight therefore did not meet its burden to
prove them unpatentable. Id. at 91–92, 94.
Keysight timely appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(4)(A).
D ISCUSSION
“We review the Board’s legal conclusions de novo and
its factual findings for substantial evidence.” Emera-
Chem Holdings, LLC v. Volkswagen Grp. of Am., Inc.,
859 F.3d 1341, 1345 (Fed. Cir. 2017). Further, “the Board’s
judgments concerning what arguments are fairly pre-
sented in a petition” and “[d]ecisions related to compliance
with the Board’s procedures” are both reviewed for an
abuse of discretion. Netflix, Inc. v. DivX, LLC, 84 F.4th
1371, 1376 (Fed. Cir. 2023); Intelligent Bio-Sys., Inc. v. Il-
lumina Cambridge Ltd., 821 F.3d 1359, 1367 (Fed. Cir.
2016). “An abuse of discretion is found if the decision: (1) is
clearly unreasonable, arbitrary, or fanciful; (2) is based on
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an erroneous conclusion of law; (3) rests on clearly errone-
ous fact finding; or (4) involves a record that contains no
evidence on which the Board could rationally base its deci-
sion.” Netflix, 84 F.4th at 1376 (internal quotation marks
and citation omitted). We must set aside a decision of the
Board if it is “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A).
Keysight makes two main arguments on appeal: (1) the
Board erred in not considering arguments offered in its pe-
tition that claims 6, 14, 22, 30, and 33 were unpatentable,
Open. Br. 23–33; and (2) the Board erred in failing to ex-
plain inconsistencies and contradictions between its Insti-
tution Decision and Final Written Decision, id. at 34–42.
We disagree with both.
First, we disagree with Keysight’s contention that the
Board failed to consider its arguments as to claims 6, 14,
22, 30, and 33. A petition for IPR must “identif[y], in writ-
ing and with particularity, each claim challenged, the
grounds on which the challenge to each claim is based, and
the evidence that supports the grounds for the challenge to
each claim.” 35 U.S.C. § 312(a)(3). This requires a petition
to “[p]rovide a statement of the precise relief requested for
each claim challenged,” and to further state “[h]ow the con-
strued claim is unpatentable under the statutory grounds
[alleged].” 37 C.F.R. § 42.104(b)(4).
Although Keysight included a general assertion in a ta-
ble and in a header of its argument section that a number
of claims, including claims 6, 14, 22, 30, and 33, were un-
patentable in view of Law and Golnabi, it did not specify
how each element of claims 6, 14, 22, 30, and 33 was obvi-
ated by the prior art. In contrast, for every other claim that
Keysight challenged as obvious, it included specific allega-
tions pointing out where each claim element was purport-
edly in the prior art (or a cross-reference to an analysis
performed elsewhere in its brief for the same limitation).
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See, e.g., J.A. 299–338. Keysight did no such elemental
analysis, and indeed offered no argument, for claims 6, 14,
22, 30, and 33. Given that Keysight did not explain “[h]ow
the construed claim is unpatentable under the statutory
grounds [alleged],” 37 C.F.R. § 42.104(b)(4), the Board did
not abuse its discretion in determining that Keysight’s pe-
tition did not adequately address the obviousness of those
claims.
Keysight relies on In re: NuVasive Inc., 841 F.3d 966
(Fed. Cir. 2016) for support of its position that it adequately
addressed the obviousness of claims 6, 14, 22, 30, and 33.
Reply Br. 4. In that case, we determined under de novo
review that the Board did not rely on a “new” ground of
unpatentability, because the petition at issue adequately
put a patent owner on notice as to that ground. NuVasive,
841 F.3d at 970, 972. We explained that, even though the
petition “did not make a clear or direct reference to [a] lim-
itation or a clear or direct assertion that the [limitation]”
was disclosed in a prior art reference, the petition specifi-
cally discussed the relevant prior art figure. Id. at 972.
The court determined that the petition “was at least mini-
mally sufficient” to put the patent owner on notice. Id.
At issue here is a materially different scenario. We de-
termined in NuVasive under de novo review that a petition
adequately gave notice to a patent owner of a ground of un-
patentability, but here Keysight failed entirely even to ad-
dress the unpatentability of claims 6, 14, 22, 30, and 33 in
its petition.
“A petitioner may not rely on a vague, generic, and/or
meandering petition and later fault the Board for failing to
understand what the petition really meant. Ultimately, it
is the petitioner’s burden to present a clear argument.”
Netflix, 84 F.4th at 1377. “[J]udges are not like pigs, hunt-
ing for truffles buried in briefs or the record . . . .” Pipes v.
United States, 123 F.4th 1324, 1331 (Fed. Cir. 2024) (cita-
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tion omitted). We cannot say that the Board abused its dis-
cretion in determining that Keysight’s petition failed to ad-
dress the obviousness of claims 6, 14, 22, 30, and 33 when
it offered no arguments regarding those claims in its peti-
tion. See Wasica Fin. GmbH v. Cont’l Auto. Sys., 853 F.3d
1272, 1285 (Fed. Cir. 2017) (affirming Board finding that
petition failed to “advance a separate argument” with re-
spect to a claim that was only mentioned in a header of the
petition).
Second, we disagree with Keysight’s assertion that the
Board’s failure to explain purportedly contradictory conclu-
sions in its Institution Decision and its Final Written Deci-
sion was arbitrary and capricious.
Keysight states that the Board came to a conclusion in
its Final Written Decision that was different from its con-
clusion in its Institution Decision. Open. Br. 34–37. While
it is true that the Board instituted IPR proceedings with
respect to all claims, including claims 6, 14, 22, 30, and 33,
it did no substantive analysis regarding those claims in its
Institution Decision and, in any event, the Board is not
bound by determinations in its institution decisions. See
Trivascular, Inc. v. Samuels, 812 F.3d 1056, 1068 (Fed. Cir.
2016) (“The Board is free to change its view of the merits
after further development of the record, and should do so if
convinced its initial inclinations were wrong.” (emphasis in
original)). As explained above, Keysight failed to specifi-
cally address the unpatentability of claims 6, 14, 22, 30,
and 33 in its petition. The Board accordingly committed no
error in reaching a conclusion in its Final Written Decision
that was different from its Institution Decision upon a fur-
ther review of the record.
Keysight finally argues that the Board was internally
inconsistent in its Final Written Decision in determining
that Keysight failed to meet its burden to show that claim
33 was unpatentable, yet the Board found other claims un-
patentable with substantially the same limitations. Open.
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Br. 38–39. To Keysight, such an inconsistency renders the
Board’s decision arbitrary and capricious. We disagree.
Keysight offered arguments in its petition for the claims
that the Board found to be unpatentable; it offered no ar-
guments for claim 33. Keysight now points to evidence that
purportedly shows that claim 33 is unpatentable, but it
failed to point the Board to this evidence in its petition with
respect to claim 33. Again, the Board committed no error
in determining that Keysight failed to meet its burden to
show that claim 33 was unpatentable when Keysight of-
fered no argument as to that claim.
The ghost in the room here whispers that we are allow-
ing plainly unpatentable claims to continue to live on. Be
that as it may, we do not opine on the patentability of
claims 6, 14, 22, 30, and 33. We are reviewing the Board’s
decision for an abuse of discretion, and we see none here.
The Board is entitled to set and maintain standards for ar-
gumentation before it. The fault, if any, lies in a failure by
the petition to fully argue the merits of every claim.
CONCLUSION
We have considered Keysight’s remaining arguments
but find them unpersuasive. For the foregoing reasons, we
affirm.
AFFIRMED
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