Eagle View Technologies, Inc. v. Nearmap Us, Inc.

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EAGLE VIEW TECHNOLOGIES, INC.,
Appellant
v.
NEARMAP US, INC.,
Appellee
______________________
2024-1488, 2024-1549
______________________
Appeals from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. IPR2022-
01009, IPR2022-01090.
______________________
Decided: February 3, 2026
______________________
LAURA VU, Haynes and Boone, LLP, San Francisco, CA,
argued for appellant. Also represented by DEBRA JANECE
MCCOMAS, Dallas, TX; GREGORY P. WEBB, Plano, TX; ADAM
LLOYD ERICKSON, ANGELA M. OLIVER, Washington, DC.
MEGAN FREELAND RAYMOND, Groombridge, Wu,
Baughman & Stone LLP, Washington, DC, argued for ap-
pellee. Also represented by JON STEVEN BAUGHMAN;
MICHAEL F. MILEA, New York, NY; LAUREN ANN DEGNAN,
BENJAMIN JOSEPH CHRISTOFF, CHRISTOPHER DRYER,
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EAGLE VIEW TECHNOLOGIES, INC. v. NEARMAP US, INC. 2
WALTER KARL RENNER, Fish & Richardson PC, Washing-
ton, DC.
______________________
Before MOORE, Chief Judge, CHEN and STARK, Circuit
Judges.
CHEN, Circuit Judge.
Eagle View Technologies, Inc. (Eagle View) appeals
two inter partes review final written decisions by the Pa-
tent Trial and Appeal Board (Board), holding that claims
1, 2, 7, 8, 21–22, 24–25, 27, and 29 of U.S. Patent
No. 8,670,961 (’961 patent) and claims 1–42 and 46–66 of
U.S. Patent No. 8,078,436 (’436 patent) are unpatentable
under 35 U.S.C. § 103. See Nearmap US, Inc. v. Eagle View
Techs., Inc., No. IPR2022-01009, 2023 WL 8651434
(P.T.A.B. Dec. 14, 2023) (’961 Decision); Nearmap US, Inc.
v. Eagle View Techs., Inc., IPR2022-01090, 2024 WL
100923 (P.T.A.B. Jan. 9, 2024) (’436 Decision). For the fol-
lowing reasons, we affirm.
BACKGROUND
The ’961 and ’436 patents, which are both titled “Aerial
Roof Estimation Systems and Methods” and share a com-
mon specification, “relate[] to . . . systems and methods
that allow estimates involving roofs on buildings to be cre-
ated remotely.” ’961 patent col. 1 ll. 18–21. The patents
teach remotely generating a roof estimate report by ana-
lyzing multiple aerial images of a building to determine the
area, shape, and slope of the roof. See, e.g., id. col. 1 l. 64 –
col. 2 l. 14.
Claim 1 of the ’961 patent, representative for appeal,
recites:
1. A computing system for generating a roof re-
port, the computing system comprising:
a memory; and
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EAGLE VIEW TECHNOLOGIES, INC. v. NEARMAP US, INC. 3
a roof estimation module that includes a
calibration module, the roof estimation
module being stored on the memory and be-
ing configured, when executed, to:
receive a plurality of aerial images of a
building having a roof, the plurality of aer-
ial images having been taken independent
of each other, at different times and on dif-
ferent dates, the aerial images providing
different views from each other of the roof
of the building, the plurality of aerial im-
ages including at least a first aerial image
that is a top plan view of the roof and a sec-
ond aerial image that is an oblique perspec-
tive view of the roof wherein at least one of
the first and/or second aerial images is cal-
ibrated using calibration information re-
ceived from the calibration module;
perform image analysis on at least two of
the plurality of aerial images;
calculate a pitch for each one of a plurality
of roof sections of the roof based on the im-
age analysis;
generate a roof report that includes the
pitch of each of the plurality of roof sections
based on the calculated pitch; and
output the roof report, wherein the roof re-
port includes one or more top plan views of
a model of the roof annotated with numeri-
cal values that indicate a corresponding
pitch, area, and length of edges of at least
some of the plurality of roof sections using
at least two different indicia for different
types of roof properties.
Id. at claim 1 (emphasis added).
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EAGLE VIEW TECHNOLOGIES, INC. v. NEARMAP US, INC. 4
Claim 1 of the ’436 patent similarly recites top plan
view and oblique images but further specifies that such im-
ages “are not a stereoscopic pair.” See ’436 patent at
claim 1.
Nearmap US, Inc. (Nearmap) petitioned for inter
partes review that challenged the validity of certain claims
of the ’961 and ’436 patents based on the combination of
(1) an article titled “Three-Dimensional Mapping and As-
Built Computer Modelling by Analytical Photogrammetry”
by R.M. Littleworth, et al., (Littleworth); (2) a textbook ti-
tled “Digital Photogrammetry Theory and Applications” by
Wilfried Linder (Linder); and (3) another textbook titled
“AutoCAD 2005 for Dummies” by Mark Middlebrook (Mid-
dlebrook). Based on this combination, the Board found
claims 1, 2, 7, 8, 21–22, 24–25, 27, and 29 of the ’961 patent
unpatentable under 35 U.S.C. § 103(a). Further, based on
the same references (coupled with two other references
that are not relevant to the analysis in this appeal), the
Board found claims 1–42 and 46–66 of the ’436 patent un-
patentable under 35 U.S.C. § 103(a).
Eagle View timely appealed. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(4)(A).
DISCUSSION
I
Claim construction is ultimately a question of law, de-
cided de novo on review, as are the intrinsic aspects of a
claim-construction analysis. Intel Corp. v. Qualcomm Inc.,
21 F.4th 801, 808 (Fed. Cir. 2021). Claims are generally
construed according to their plain and ordinary meaning as
understood by a person having ordinary skill in the rele-
vant art in view of the specification. See Phillips v. AWH
Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005) (en banc).
The Court departs from this meaning, however, when the
specification evinces a clear intent—through either disa-
vowal or lexicography—that a different meaning should
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EAGLE VIEW TECHNOLOGIES, INC. v. NEARMAP US, INC. 5
govern. Id. at 1316; Trs. of Columbia Univ. in City of New
York v. Symantec Corp., 811 F.3d 1359, 1364 (Fed. Cir.
2016).
Obviousness is ultimately a question of law reviewed
de novo based on underlying questions of fact reviewed for
substantial evidence. St. Jude Med., LLC v. Snyders Heart
Valve LLC, 977 F.3d 1232, 1238 (Fed. Cir. 2020).
“[W]hether there is a reason to combine prior art references
is a question of fact.” Kinetic Concepts, Inc. v. Smith &
Nephew, Inc., 688 F.3d 1342, 1367 (Fed. Cir. 2012).
II
Eagle View argues that the Board erred by construing
“calculate a pitch” and “determining a pitch” as encompass-
ing inaccurate or unreliable calculations.1 Eagle View as-
serts that the terms “calculat[ing]” and “determining”
require greater accuracy than mere approximation or esti-
mation. At a minimum, Eagle View contends, the specifi-
cation confirms that the claimed calculation steps must be
faithful enough to the real-life structure to aid practition-
ers in planning roof construction or repair services. In lev-
ying this challenge, Eagle View does not contend that
“calculate” and “determining” should be afforded different
constructions or that the terms correspond to different lev-
els of accuracy.
Nearmap argues that Eagle View forfeited its claim
construction arguments by failing to raise them before the
Board. On the merits, Nearmap argues that the plain
meaning of the terms “calculation” and “determination” do
not require a particular level of accuracy, and the specifi-
cation, which chiefly concerns estimating the dimension
1 Several of the challenged claims recite “determin-
ing a pitch” or “determine a pitch” in lieu of “calculate a
pitch.” See, e.g., ’961 patent at claim 29 (reciting “deter-
mining a pitch for a plurality of roof sections”).
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EAGLE VIEW TECHNOLOGIES, INC. v. NEARMAP US, INC. 6
and slopes of roofs, does not require a different construc-
tion.
Assuming that Eagle View preserved its claim con-
struction challenge,2 we are not convinced that the terms
“calculate” or “determining”—when read in view of the
specification—denote a particular accuracy requirement.
The specification confirms that the term “determining” al-
lows for estimations. See ’961 patent col. 4 ll. 19–30 (indi-
cating that “determin[ing] the dimensions and slopes of the
roof sections” may be based on “closely estimat[ing] the di-
mensions and slopes of the roofs”). Moreover, embodiments
in the specification describe “accurately determin[ing] the
pitch,” indicating that accuracy is not built into the mean-
ing of “determining.” See id. col. 9 l. 35. Accordingly, Eagle
View’s argument that the term “determine” excludes ap-
proximation, estimation, or “near calculation” lacks merit.
See Appellant’s Br. 27.
Likewise, with respect to the “calculat[ing]” claim
term, we find no evidence in the specification to suggest
that “calculate” requires a certain level of accuracy. In-
stead, the specification indicates that the term “calculate”
refers to obtaining a result via the performance of mathe-
matical steps. See ’961 patent col. 6 ll. 5–6 (“The slope can
be easily calculated from such a representation using basic
trigonometry.”).
2 It is not clear that Eagle View preserved its claim
construction challenge. Neither party argued for a special-
ized construction of either the term “calculate” or “deter-
mining.” Moreover, Eagle View’s arguments before the
Board appear to concern the application of these terms to
the prior art rather than the actual meaning and scope of
the terms themselves. And, generally, arguments not pre-
sented to the Board are forfeited. In re Google Tech. Hold-
ings LLC, 980 F.3d 858, 863 (Fed. Cir. 2020).
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EAGLE VIEW TECHNOLOGIES, INC. v. NEARMAP US, INC. 7
For these reasons, we conclude the specification does
not support Eagle View’s position that “determining” and
“calculat[ing]” do not encompass estimations or approxima-
tions. Accordingly, we affirm the Board’s implicit construc-
tion.
III
Eagle View argues that Nearmap’s petition relies on
Littleworth’s disclosure alone to meet the claimed “calcu-
late a pitch” and “determining a pitch” limitations. Accord-
ing to Eagle View, because Littleworth does not expressly
disclose calculating or determining a pitch, the petition re-
lies on the theory that Littleworth inherently discloses the
calculation limitation. The Board erred, Eagle View con-
tends, by concluding that Littleworth disclosed calculating
a pitch without demonstrating that a pitch calculation was
necessarily present in Littleworth’s system.
As an initial matter, we identify no error in the Board’s
interpretation of the petition as arguing that a skilled arti-
san would have understood that Littleworth determines
and calculates a pitch from its statement that “roof detail
was digitized ‘indicating their pitch.’” ’961 Decision, 2023
WL 8651434, at *27. In an unpatentability challenge, as-
sessing the scope of a prior art reference’s disclosure may
involve determining how a skilled artisan would under-
stand or interpret what is explicitly stated. See Sage
Prods., LLC v. Stewart, 133 F.4th 1376, 1384–85 & n.5
(Fed. Cir. 2025) (holding that expert testimony may be re-
lied upon in an anticipation analysis to ascertain how a
skilled artisan “would have understood” a particular dis-
closure in the prior art reference). Here, the Board credited
Nearmap’s expert’s testimony that “[t]he inclusion of a
pitched roof in Littleworth’s three-dimensional model of
the roof indicates that Littleworth’s system made a deter-
mination of the pitch of the roof shown in the aerial images
from which the model was generated.” ’961 Decision, 2023
WL 8651434, at *26; J.A. 1433–34. Accordingly, the Board
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EAGLE VIEW TECHNOLOGIES, INC. v. NEARMAP US, INC. 8
correctly interpreted the petition and reasonably found
that a skilled artisan would find the “calculating” limita-
tions obvious in view of Littleworth.
Additionally, we agree with the Board that the petition
does not rely solely on Littleworth for meeting the “calcu-
lating a pitch” limitation but, instead, also presents a the-
ory based on the combination of Littleworth’s and
Middlebrook’s teachings. See ’961 Decision, 2023 WL
8651434, at *26 (“We determine that Petitioner has suffi-
ciently proven that [the calculate limitation] would have
been obvious over the proposed combination.”); J.A. 341–42
(“Additionally or alternatively, in the combination, Middle-
brook teaches automatically ‘calculat[ing] distances and di-
mensions’ from a three-dimensional model.”). Specifically,
the Board understood Nearmap’s combination as incorpo-
rating Littleworth’s teachings regarding generating a
three-dimensional model based on image analysis with
Middlebrook’s disclosure of “calculat[ing] . . . angular di-
mensions (i.e., pitch)” associated with such models. ’961
Decision, 2023 WL 8651434, at *25–26 (citation modified).
While Eagle View argues that this confirms that Near-
map’s combination at most calculates the pitches of models
rather than the required roof section, the claims do not re-
quire the pitch calculation to be performed directly from
the image analysis. See ’961 patent at claim 1 (reciting
“calculat[ing] a pitch for each one of a plurality of roof sec-
tions of the roof based on the image analysis”). And the
Board reasonably found that, in Nearmap’s combination,
the pitch calculations are based on the image analysis
given that they “are calculated as part of the three-dimen-
sional model generation, which is based on the image anal-
ysis.” ’961 Decision, 2023 WL 86551434, at *28. In short,
the Board correctly construed the petition as arguing that
the “calculat[ing] a pitch” limitations were met based on
the combination of Littleworth and Middlebrook, and sub-
stantial evidence supports the Board’s finding.
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EAGLE VIEW TECHNOLOGIES, INC. v. NEARMAP US, INC. 9
IV
Eagle View also alleges that the Board failed to ade-
quately explain its rejection of Eagle View’s argument that
a skilled artisan would not have combined Linder’s stereo-
scopic imaging techniques with Littleworth’s non-stereo-
scopic images because stereoscopic images are a
prerequisite for obtaining accurate results with Linder’s
techniques. Specifically, Eagle View contends that a Tech-
nical Note issued by the Bureau of Land Management con-
firms that accurate 3D modelling requires “stereoscopic
overlap.” Appellant’s Br. 56 (citing J.A. 4620). Eagle View
argues that the Board discounted this evidence based on
Nearmap’s expert’s testimony that only “sufficient ‘over-
lap’” is needed for stereoscopic viewing to be applied, but
the Board never explained the degree of overlap required
to resolve the accuracy concerns Eagle View identified. Id.
at 56–57.
We disagree. The Board’s finding that a skilled artisan
would have reason to combine Littleworth and Linder is
adequately explained and supported by substantial evi-
dence. The Board framed the relevant reason to combine
inquiry as whether a skilled artisan would have found the
teachings of Linder pertinent to those of Littleworth. The
Board reasonably answered in the affirmative, finding that
Littleworth identifies suitable control points within the
aerial images that it later coordinates to generate three-
dimensional models and, while Littleworth does not pro-
vide detail regarding how to use such control points, Linder
does. See Intel Corp. v. PACT XPP Schweiz AG, 61 F.4th
1373, 1380 (Fed. Cir. 2023) (“[I]f there’s a known technique
to address a known problem using prior art elements ac-
cording to their established functions, then there is a [rea-
son] to combine.” (citation modified)). While Eagle View
presented evidence indicating that accurate imaging could
not be performed without using stereoscopic viewing, the
Board found that Littleworth is not limited to the correla-
tion of non-stereoscopic image pairs. ’961 Decision, 2023
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EAGLE VIEW TECHNOLOGIES, INC. v. NEARMAP US, INC. 10
WL 8651434, at *22. Indeed, Littleworth notes that for one
project discussed in Littleworth “[s]uitable vertical aerial
photography . . . was located” whereas oblique photog-
raphy was used as a supplement in other projects. See
J.A. 1488–89. Thus, at a minimum, a fact finder could rea-
sonably determine that a skilled artisan would have reason
to apply Linder’s teachings regarding correlating control
points with Littleworth’s vertical aerial images. Moreover,
the Board found that Linder’s teachings are not limited to
applications involving stereoscopic image pairs. Instead,
the Board found that the portions of Linder upon which Ea-
gle View relied merely suggest that there needs to be suffi-
cient overlap, and these teachings are consistent with
Littleworth’s overlapping images. The record supports this
finding; Littleworth discloses using top and oblique view
images of the same building to generate building models.
And the Board credited Nearmap’s expert’s testimony,
which explains that nothing in Linder suggests that its
teachings would not apply to vertical and oblique aerial im-
ages. ’961 Decision, 2023 WL 8651434, at *23; J.A. 2764–
65 ¶ 35. Accordingly, we conclude that the Board ade-
quately explained and supported its finding of a reason to
combine Littleworth and Linder and find no error in its re-
jection of Eagle View’s rebuttal arguments.
CONCLUSION
We have considered Eagle View’s other arguments but
find them unpersuasive. For these reasons, we affirm.
AFFIRMED
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