Samsung Electronics Co., Ltd., Samsung Electronics America, Inc. v. Power2b, Inc.

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SAMSUNG ELECTRONICS CO., LTD., SAMSUNG
ELECTRONICS AMERICA, INC.,
Appellants
v.
POWER2B, INC.,
Appellee
______________________
2023-2121, 2023-2122
______________________
Appeals from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. IPR2022-
00315, IPR2022-00325.
______________________
Decided: November 14, 2025
______________________
BENJAMIN HABER , O'Melveny & Myers LLP, Los Ange-
les, CA, argued for appellants. Also represented by
ABIGAIL G RACE MC F EE , N ICHOLAS WHILT , RYAN K EN
YAGURA ; WILLIAM F INK, Washington, DC; T HOMAS
MCCLINTON HARRIS , Newport Beach, CA.
MARK T HOMAS D EMING, Polsinelli PC, Chicago, IL, ar-
gued for appellee. Also represented by ADAM P ETER
D ANIELS , Los Angeles, CA; J ASON WIETJES , Dallas, TX.
______________________
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 2
Before D YK, STOLL , and STARK, Circuit Judges.
Opinion for the court filed by Circuit Judge S TOLL .
Dissenting opinion filed by Circuit Judge D YK.
STOLL , Circuit Judge.
Samsung Electronics Co., Ltd. and Samsung Electron-
ics America, Inc. (collectively, “Samsung”) appeal the Pa-
tent Trial and Appeal Board’s Final Written Decisions in
the inter partes reviews of U.S. Patent Nos. 10,664,070
and 9,946,369. Samsung challenges the Board’s determi-
nation that Samsung presented a new obviousness ground
in its reply briefs. According to Samsung, the ground was
not new because it was presented in its IPR Petitions. Be-
cause the Board did not abuse its discretion in determining
that the ground was not in the IPR Petitions and was thus
new and forfeited under the Board’s rules, we affirm.
BACKGROUND
I
Both the ’070 and ’369 patents are owned by Power2B,
Inc. and are titled “Input System for Controlling Electronic
Device.” U.S. Patent No. 10,664,070 Title; U.S. Patent
No. 9,946,369 Title. The patents share a specification, as
the ’070 patent is a continuation of the ’369 patent.1 The
patents relate to “computer navigation” and “an apparatus
which facilitates navigation of software stored on the appa-
ratus.” ’070 patent col. 1 ll. 25–28. The specification de-
scribes challenges for then-existing electronic device
interfaces, including that devices often organized data into
display menus with levels, the navigation of which could
detract from a user’s experience. See ’070 patent col. 1
ll. 38–63. The patented invention thus sought “to provide
a pocket computer or hand held device which incorporates
means for enabling easier access to data on the device,”
’070 patent col. 1 ll. 64–66, and “one aspect of the present
1 Unless otherwise indicated, citations in this opin-
ion are to the ’070 patent’s specification.
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 3
invention, therefore, . . . provide[s] an electronic device
having a display for displaying data stored thereon, input
means and control means for controlling the data displayed
on the display in dependence on the three-dimensional po-
sition of the input means with respect to the device.”
’070 patent col. 2 ll. 1–8.
Figure 1 illustrates a device 10 having a display 12,
buttons 14, and a stylus 16, where device 10 could be a
hand-held computer, a personal digital assistant, or a mo-
bile phone, see ’070 patent col. 2 ll. 53–58, 61–63, col. 3
ll. 38–44:
’070 patent Fig. 1. Device 10 displays data on display 12,
which may be a liquid crystal display (or LCD), and sty-
lus 16 takes the form of a pen-shaped instrument that al-
lows the user to select various options displayed on
display 12. See ’070 patent col. 2 ll. 57–62, col. 3 ll. 38–44.
The stylus 16 emits a beam of light, which is sensed by a
sensitive layer that is positioned over or incorporated in
display 12. See ’070 patent col. 4 ll. 63–67. The sensitive
layer determines the X-Y coordinates of stylus 16 and
sends a corresponding position signal to the central pro-
cessing unit of device 10. See ’070 patent col. 5 ll. 5–10.
The angle and distance of stylus 16 from display 12 are de-
termined and used to determine the position of stylus 16 in
the Z-dimension. See ’070 patent col. 6 ll. 18–22. Claim 1
of the ’070 patent is illustrative:
1.[Pre] An interactive device comprising:
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 4
[1A] a stylus for emitting a beam of electromag-
netic radiation;
[1B] a display screen disposed in a housing, the dis-
play screen displaying one or more selectable icons,
the display screen forming a touch-sensitive dis-
play plane;
[1C] a sensor array disposed in the housing and
forming a sensitive layer in a sensor plane proxi-
mate to the display screen, the sensor array is con-
figured to detect at least a portion of the beam of
electromagnetic radiation incident on the display
screen; and
[1D] a processing unit configured to:
[1E] receive an output signal from the sensor
array;
[1F] determine the output signal from the sen-
sor array corresponds to a distribution pattern
of electromagnetic radiation;
[1G] determine a three-dimensional position of
the stylus relative to the interactive device
based on the distribution pattern;
[1H] determine the three-dimensional position
of the stylus corresponds to a first selectable
icon of the one or more selectable icons based
on the output signal;
[1I] determine at least a portion of the output
signal corresponds to a selection function asso-
ciated with the first selectable icon; and
[1J] execute, based on the selection function, a
function related to the first selectable icon.
’070 patent col. 8 ll. 10–35.
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 5
II
A
Samsung filed IPR Petitions seeking review of
claims 1–18 of the ’070 patent and claims 1–17 of the
’369 patent. For all grounds against both patents, Sam-
sung relied on a combination of Keely2 and Geva.3 Keely is
directed to a notepad or notebook computer interface that
facilitates input via a pen. See J.A. 1333. Keely’s Figure 1
illustrates liquid crystal display 10 with writing sur-
face 15, display area 12, and tool region 16. See J.A. 1334.
Tool or status indicators are partially or fully displayed in
tool region 16, which is around the edge of writing sur-
face 15, as shown in Figure 6, see J.A. 1334:
Appellants’ Br. 11 (combining J.A. 1311, 1314). Keely’s
system displays the tools when the pen is determined to be
“over or within a predetermined threshold distance or re-
gion of an object,” J.A. 1334, including when the pen is “in
the air above the display,” J.A. 1335. Specifically, the tools
are “partially hidden . . . until approached by the pen (in
the air above the screen), at which time they come fully into
2 U.S. Patent No. 6,337,698.
3 Great Britain Published Patent Application
No. 2,299,856.
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 6
view, and after the pen leaves, the tools return to the par-
tially-hidden appearance.” J.A. 1335. Keely uses an elec-
tromagnetic coil-based digitizer disclosed in an
incorporated reference, U.S. Patent No. 6,756,970
(“Keely II”), to determine the position of the pen. See
J.A. 1333–34.
Geva relates to position-determining input devices.
See J.A. 1356. Geva’s device includes a planar element 14
and two light sensor arrays 12 and 28, where the light sen-
sor arrays 12 and 28 are coupled to optical lenses 15
and 32, as well as to a processing device 16, which com-
prises an intensity/distance computation function 17 and a
memory element 19, see J.A. 1363–64, as shown in Fig-
ure 6:
J.A. 1353. “In operation, the light emitting cursor de-
vice 10, e.g. an active light pen, emits a beam of light on to
the planar element 14.” J.A. 1360. “The beam of light is
reflected off the planar element 14 and along the surface of
the planar element 14, through the optical lens 15 and onto
the light sensor array 12.” J.A. 1360. Intensity/distance
computation function 17 of processing device 16 calculates
the position of light emitting cursor device 10 according to
the intensity of light incident on first and second light sen-
sor arrays 28 and 30. See J.A. 1364.
At a high level, the Petitions proposed a combination of
Keely and Geva that included the user interface, pro-
cessing unit, and tools from Keely’s notebook computer sys-
tem combined with Geva’s sensor arrays and light emitting
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 7
pen. See J.A. 276–83.4 In specifically discussing limita-
tion [1B] of the ’070 patent, Samsung explained that
Keely’s display screen forms a “touch-sensitive plane” that
is “compatible with Geva’s planer [sic] element 14.”
J.A. 278. In support of that statement, the Petition cites to
the declaration of Dr. Benjamin B. Bederson, which de-
scribes an annotated figure from the Petition by explaining
that “Keely’s display screen and Geva’s planar element 14
[were] in red[, as illustrated below,] to show how Keely’s
touch-sensitive plane can be used as Geva’s planar ele-
ment,” J.A. 377–78 (emphasis added):
J.A. 279 (citing J.A. 1311, 1314; J.A. 1353); see also
J.A. 378.
After institution, Power2B responded that Samsung’s
combination of Keely and Geva excluded Geva’s planar el-
ement 14, making the combination inoperable. In reply,
Samsung alleged that its original combination incorpo-
rated Geva’s entire “position determining input device,”
such that “Geva’s sensor array and planar element would
simply be placed on top of Keely’s conventional LCD,” with
4 The parties generally cite to the Petition for the
’070 patent, and Samsung concedes that the Petition for
the ’369 patent is substantially similar to the Petition for
the ’070 patent in describing its combination. Samsung
does not argue that the combination could be read differ-
ently between the two Petitions.
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 8
the planar element “replacing Keely’s digitizer.”
J.A. 3888–900. Dr. Bederson also submitted a reply decla-
ration pointing to his purported prior reliance on planar el-
ement 14 and clarifying that “[p]erhaps I could have been
more precise by using the word ‘with’ in place of ‘as,’” such
that Keely’s display would work “with” Geva’s planar ele-
ment 14. J.A. 4142.
Following the oral hearing, each party submitted addi-
tional briefing on what prior art combination Samsung in-
cluded in its Petitions and whether it presented new
arguments in its reply briefing.
B
In the Final Written Decisions,5 the Board determined
that Samsung had failed to include Geva’s planar ele-
ment 14 in the prior art combination put forward in its Pe-
titions, and instead improperly introduced it as a new
argument in its reply briefing. Under 37 C.F.R § 42.23(b),
a “reply may only respond to arguments raised in the cor-
responding opposition . . . .” While the petitioner can re-
spond to the patent owner’s argument, it “may not submit
new evidence or argument in reply that it could have pre-
sented earlier [in the petition], e.g. to make out a prima
facie case of unpatentability.” U.S. Patent Trial and Ap-
peal Board, Consolidated Trial Practice Guide 73 (Nov.
2019); see also Rembrandt Diagnostics, LP v. Alere, Inc.,
76 F.4th 1376, 1384 (Fed. Cir. 2023) (“[T]he very nature of
the reply and sur-reply briefs are to respond (whether to
refute, rebut, explain, discredit, and so on) . . . within the
confines of 37 C.F.R. § 42.23(b).”).
5 In the Final Written Decision for the ’369 patent,
one administrative patent judge dissented as to each deter-
minative issue. The parties do not treat the pertinent anal-
ysis from the Board decision in the IPR on the ’070 patent
and the majority decision in the IPR on the ’369 patent as
materially different. Unless otherwise stated, this opinion
will cite to the Board’s Final Written Decision on the
’070 patent.
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 9
The Board considered the “operative issue” to be
whether Samsung’s combination of “[(1)] Geva’s sensor ar-
rays and planar element[, which] would simply be placed
on top of Keely’s conventional LCD[,] and [(2) Samsung]’s
argument that it does not rely on Keely II’s digitizer[,] are
advanced in the Petition or whether the Reply presents
new theories in violation of 37 C.F.R. § 42.23(b).” J.A. 19
(quotation marks and citation omitted). The Board deter-
mined that “the Petition relies on Keely’s teachings of de-
termining position in its element-by-element analysis.”
J.A. 19–20 (citing J.A. 278 (describing in the Petition with
respect to limitation [1B] that Keely’s “‘notebook’ or ‘note-
pad’ computer includes all of the components, including the
display, processors, memory, sensors, and other compo-
nents”); J.A. 278 (Petition describing how Keely’s display
screen “forms a touch-sensitive plane” for limitation [1B]);
J.A. 279 (Petition addressing limitation [1C] and stating
that, “[a]s explained above, Keely provides a touch-sensi-
tive display plane”); J.A. 288 (Petition addressing limita-
tion [1H] and stating that “a POSITA would have
understood that Keely determines the three-dimensional
position of the stylus corresponding to a first selectable icon
from among selectable icons”)). The Board determined that
the “arguments in the Petition specifically relating to
Keely’s determination of pen position support [Power2B]’s
contention that the combination in the Petition includes
Keely II’s hardware,” and, thus, not Geva’s planar element.
J.A. 21; see also J.A. 20 (explaining how Keely’s disclosed
position detection is done by hardware disclosed in
Keely II).
The Board then considered Samsung’s arguments that
its Petition presented a combination including Geva’s pla-
nar element without Keely II’s hardware. First, Samsung
pointed to its motivation to combine section of the Petition,
but the Board determined “the identified discussion of the
Petition describes only how Keely and Geva are similar.”
J.A. 21–22 (citing J.A. 274). Second, Samsung argued that
the Petition relied on using Geva’s technology as an im-
proved alternative to Keely II’s hardware, without identi-
fying where in the Petition Samsung allegedly made this
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 10
point. J.A. 22. Reviewing what it believed likely to be the
sections that Samsung was referring to, the Board deter-
mined those sections (1) included no express reference to
planar element 14, and (2) included the statement that “[i]t
would have been obvious” to include Geva’s sensor arrays
“to detect at least a portion of the beam of electromagnetic
radiation incident on the display screen,” which is “con-
sistent” with light “being detected ‘incident on’ Keely’s ‘dis-
play screen,’” and not with Geva, where “light emitting
cursor device 10 ‘emits a beam of light on to the planar el-
ement 14,’ which is ‘reflected off the planar element 14’ and
‘onto the light sensor array 12.’” J.A. 22–24 (emphasis re-
moved) (quoting J.A. 280; J.A. 1360). Third, Samsung ar-
gued that Keely merely points to Keely II as an example of
a prior art input approach that could be used. But the
Board was persuaded that Samsung “relie[d] on Keely for
teaching determining the pen position and Keely states
that its hardware is described in Keely II.” J.A. 24 (citing
J.A. 1334); see also J.A. 20 n.6. The Board looked to argu-
ments in the Petition specifically relating to limitation [1B]
on this point, noting how (1) Samsung relied on Keely for
teaching “the display screen forming a touch-sensitive dis-
play plane” recited in limitation [1B], J.A. 278–79;
(2) Keely describes its “touch-screen buttons,” J.A. 1338,
and tool display process, which “involves obtaining the pen
location from the digitizer grid control process of the com-
puter,” J.A. 1335; and (3) Samsung relied on Dr. Beder-
son’s declaration for this limitation, which stated “I have []
annotated Keely’s display screen and Geva’s planar ele-
ment 14 in red to show how Keely’s touch-sensitive plane
can be used as Geva’s planar element,” J.A. 378 (emphasis
added). J.A. 24–26.
The Board then considered Samsung’s arguments that
it had not presented a new combination in its reply brief-
ing. First, the Board noted that, in response to Power2B’s
arguments, Samsung did not dispute that a combination
without Geva’s planar element would be inoperable.
J.A. 26. Instead, Samsung (1) contended that Power2B
had attacked a combination that Samsung had not ad-
vanced, and (2) submitted a reply declaration from
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 11
Dr. Bederson asserting that while he “could have been
more precise,” his original combination included “Geva’s
planar element [that] sits on top of Keely’s LCD display.”
J.A. 26–27 (quoting J.A. 4142). The Board found, however,
that Dr. Bederson’s testimony on reply was “not a clarifica-
tion of his initial testimony, but, instead, is a clear revision
of his testimony and his opinion,” and that such testimony
was improper new testimony. J.A. 28–29.
The Board moved on to consider Samsung’s briefing fol-
lowing oral argument. Samsung contended that the Peti-
tion’s use of the word “compatible” in the sentence “[a]s
shown in Figure 1, Keely’s tool icons from Figure 6 have
been superimposed to show how the display screen [] forms
a touch-sensitive plane which is compatible with Geva’s
planar element 14” meant that Keely’s tool icon and Geva’s
planar element “are capable of working together.” J.A. 29
(quoting J.A. 4426). But the Board found this to be unsup-
ported attorney argument, as this was the statement that
relied on Dr. Bederson’s now-excluded testimony on “how
Keely’s touch-sensitive plane can be used as Geva’s planar
element.” J.A. 29 (quoting J.A. 378). Samsung also argued
that Geva’s planar element is discussed ten times in the
Petition grounds, but the Board, “upon consideration of all
discussion of Geva’s planar element in the Petition, [found]
that nothing in the Petition indicates that [Samsung]’s pro-
posed combination is placing Geva’s planar element on top
of Keely’s display,” and instead “Keely’s position determin-
ing is discussed throughout the Petition.” J.A. 29–30.
After determining that Samsung’s Petition included
“argument and evidence indicating clear reliance on
Keely’s teachings of determining pen position,” the Board
concluded that Samsung’s newly proposed combination
placing Geva’s planar element 14 on top of Keely’s LCD dis-
play was improper and should be disregarded. J.A. 31.
The Board, however, determined that it “need not reach
that decision because, . . . even upon consideration of [Sam-
sung]’s Reply arguments[, Samsung] does not demonstrate
that claim 1 is unpatentable.” J.A. 31. As to this alterna-
tive argument, the Board determined that Samsung did
not show “that any touch-screen capabilities would be
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 12
maintained with Geva’s planar element 14 on top of Keely’s
display,” J.A. 39, because Geva, unlike Keely, teaches the
advantages of “the position-determining input device [not]
requir[ing] a specific, active board with in-built sensors for
determining positions.” J.A. 39–40 (quoting J.A. 1358). In
other words, the Board ultimately concluded that Samsung
had not carried its burden to demonstrate any of the chal-
lenged claims were unpatentable even under Samsung’s
new theory of obviousness.6
Samsung appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(4)(A).
D ISCUSSION
On appeal, Samsung contends that the Board erred in
finding that Samsung did not rely on Geva’s planar ele-
ment 14 in its Petitions. We review the Board’s determi-
nation of whether Samsung raised a combination that
included Geva’s planar element in its Petitions for an abuse
of discretion. “It is for the Board to determine what
grounds are being articulated in a petition and what argu-
ments and evidence are being referred to in the responses
and any replies.” Corephotonics, Ltd. v. Apple Inc.,
84 F.4th 990, 1002 (Fed. Cir. 2023). “In particular, the
Board has discretion to determine ‘whether a [p]etition
identified the specific evidence relied on in a [r]eply and
when a [r]eply contention crosses the line from the respon-
sive to the new.’” Id. (alterations in original) (quoting Ari-
osa Diagnostics v. Verinata Health, Inc., 805 F.3d 1359,
1368 (Fed. Cir. 2015)). On appeal, this court “review[s] the
Board’s assessments of what has been argued to and put
before it in an IPR for abuse of discretion.” Id. at 1002–03
(citing Yita LLC v. MacNeil IP LLC, 69 F.4th 1356, 1366
(Fed. Cir. 2023)). The Board abuses its discretion when its
decision “(1) is clearly unreasonable, arbitrary, or fanciful;
6 Because we ultimately conclude that the Board did
not abuse its discretion in declining to consider the argu-
ments raised by Samsung in Reply, we need not further
discuss the Board’s alternative, substantive determination.
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 13
(2) is based on an erroneous conclusion of law; (3) rests on
clearly erroneous fact finding; or (4) involves a record that
contains no evidence on which the Board could rationally
base its decision.” Ericsson Inc. v. Intell. Ventures I LLC,
901 F.3d 1374, 1379 (Fed. Cir. 2018) (quoting Bilstad
v. Wakalopulos, 386 F.3d 1116, 1121 (Fed. Cir. 2004)).
Here, we see no legal error in the Board’s analysis, and we
cannot say that the Board’s reading of the Petitions is un-
reasonable or that it otherwise abused its discretion in con-
cluding that Samsung did not sufficiently raise in its
Petitions the combination it now advances.7
Ground 1 in Samsung’s IPR Petition mentions Geva’s
planar element several times:
• In discussing limitation [1A]: “Keely is agnostic as
to its specific pen technology, but it would have
been obvious to use a stylus for emitting a beam of
electromagnetic radiation in Keely in view of the
disclosure of Geva. Geva discloses a ‘position-deter-
mining input device’ for use in LCD displays com-
prising a ‘light emitting cursor device 10, e.g. an
active light pen, emits a beam of light on to the pla-
nar element 14.’ A POSITA would have understood
that light, including ultraviolet and infrared, is
electromagnetic radiation with wavelengths be-
tween approximately 100 nm and 1 mm, that can be
emitted in a beam. A POSITA would have been mo-
tivated to include Geva’s light emitting pen in
Keely’s system for an improved arrangement to de-
termine the position of the ‘computer pen’ using its
emitted light since ‘the digitizing technology must
work effectively with a liquid crystal display []
screen, it must protect the LCD polarized surface,
and it should accurately simulate the sense of pen
7 Samsung concedes that we review the Board’s
reading of its Petitions for an abuse of discretion. Oral Arg.
at 2:47–3:29, https://oralarguments.cafc.uscourts.gov/de-
fault.aspx?fl=23-2121_04082025.mp3.
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 14
and paper.’” J.A. 276–77 (emphasis added) (cita-
tions omitted).
• In discussing limitation [1B]: “Keely’s ‘notebook or
notepad computer includes a liquid crystal dis-
play 10, as depicted in FIG. 1, with a display
area 12 of a size and shape approximating a piece
of paper.’ A POSITA would have understood that
the ‘notebook’ or ‘notepad’ computer includes all of
the components, including the display, processors,
memory, sensors, and other components in a uni-
tary housing, to ensure maximum mobility. Keely’s
display shows a page including selectable icons,
such as a ‘tool region’ where ‘tool icons’ are partially
visible until the ‘pen is brought near one of the
icons, at which time [the tools] become[] fully visi-
ble.’ As shown in Figure 1, Keely’s tool icons from
Figure 6 have been superimposed to show how the
display screen (outlined in red) forms a touch-sen-
sitive plane which is compatible with Geva’s planer
[sic] element 14 (annotated in red).” J.A. 278 (alter-
ations in original) (emphasis added) (citations omit-
ted).
• In discussing limitation [1C]: “A POSITA would
have understood that Keely’s display plane thus in-
cludes a sensor array disposed in the housing that
forms a sensitive layer in a sensor plane proximate
to the screen in order to collect the input for ‘inter-
acting’ with electronic documents. As noted above,
the housing would have been understood as the uni-
tary housing of the ‘notebook’ or ‘notepad’ computer
that includes all of the components, including the
display, processors, memory, sensors, which en-
sures maximum mobility. A POSITA would have
understood that the sensor that senses the radia-
tion incident on the display screen would have been
contained within the same unitary housing. Geva
provides ‘light sensor arrays 12 and 28’ (annotated
in green)’ [sic] disposed ‘at first and second edges of
the planar element 14’ and comprise a ‘multiplicity
of light sensing elements’ coupled to optical lenses
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 15
to select only the ‘desired light source,’ as shown in
Figure 6. It would have been obvious to a POSITA
to include the sensor arrays disposed in the ‘note-
book computer’ housing and forming a sensitive
layer in a sensor plane proximate to the display
screen 12 of Keely, because the sensor arrays in
Geva are configured to detect at least a portion of
the beam of electromagnetic radiation incident on
the display screen.” J.A. 279–80 (emphasis added)
(citations and figure omitted).
• In discussing limitation [1G]: “As explained above,
a POSITA would have combined Keely’s display
plane with the sensor array and processor of Geva
in order to collect the positional input for ‘interact-
ing’ with electronic documents. Keely provides the
icons representative of various ‘tools’ when the sys-
tem determines whether the pen is ‘over or within
a predetermined threshold distance or region of an
object,’ and, therefore, requires determining a
three-dimensional position, but leaves the imple-
mentation details to a POSITA. As discussed
above, light sensor arrays 12 and 28 are positioned
in a first and second dimension of the planar ele-
ment 14 to indicate the “x” and “y” positions of light
emitting stylus. In particular, Geva teaches that
‘the intensity/distance computation function 17 of
the processing device 16 determines which light
sensing elements receive the highest intensity of in-
cident light incident and thereby the two-dimen-
sional position of the light emitting cursor
device 10.’” J.A. 284–85 (emphasis added) (cita-
tions omitted).
• In discussing dependent claims 2 and 13: “Geva
teaches that, in Figure 6, ‘[t]he light sensor ar-
rays 12 and 28 are positioned for operation in two-
dimensions of the planar element 14 and are exten-
sions of the light sensor array (light sensing ele-
ment) 12 described for primary operation in one
dimension of FIG. 1, FIG. 2 or FIG. 5.’” J.A. 290
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 16
(alteration in original) (emphasis added) (citations
omitted).
• In discussing dependent claim 6: “Keely ‘deter-
mine[es] 104 [sic] whether the pen is within a pre-
determined threshold distance of or in the
region 16. Note that this includes the pen being in
the air above the display and not touching the dis-
play.’ ‘If the pen comes down on the object or ele-
ment with a tap, the system selects 34 the object.’
A POSITA would have understood that this corre-
sponds to a distance between the stylus and the in-
teractive device. Additionally, Geva discloses
calculating the ‘position of the light emitting cursor
device 10 in a third, “z”, dimension’ ‘perpendicular
to the first “x” dimension and to the second “y” di-
mension,’ using the ‘two-dimensional plane of
FIG. 6.’ As seen in Figure 7, Geva’s intensity/dis-
tance computation function 17 of the processing de-
vice 16 calculates the third-dimension position
according to the intensity of light sensed by light
sensor arrays 12 and 28. A POSITA would have un-
derstood that Geva’s ‘z’ dimension corresponds to
the distance from the [sic] Geva’s pen to the planar
element. A POSITA would have combined Geva’s
third dimension determination into Keely’s pen-
based notepad computer system for the same rea-
sons as described above in regard to element [1G].”
J.A. 297–98 (first alteration in original) (emphasis
added) (citations and figure omitted).
• In discussing dependent claims 9 and 12: “As ex-
plained above, Keely provides a touch-sensitive dis-
play plane. It would have been obvious to include
Geva’s sensor plane that is substantially parallel to
the touch-sensitive display plane. Geva describes
how its ‘planar element 14’ is replaced by a ‘beam
splitter planar element 26’ which mirror the light to
the ‘two light sensor arrays 12 and 28,’ as shown in
Figure 8 below. A POSITA would have understood
that the sensor plane would be parallel to the dis-
play screen since Geva’s light sensor arrays sense
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 17
light on the plane under the X-Y planar element.”
J.A. 299 (emphasis added) (citations omitted).
• In discussing dependent claim limita-
tion [11B]: “As explained above, Keely-Geva deter-
mines the three-dimensional position of the stylus
relative to the interactive device. Specifically,
Geva’s light sensor arrays 12 and 28 are positioned
in a first and second dimension of the planar ele-
ment 14 to indicate the “x” and “y” positions of light
emitting stylus. Geva teaches that ‘the inten-
sity/distance computation function 17 of the pro-
cessing device 16 determines which light sensing
elements receive the highest intensity of incident
light incident and thereby the two-dimensional po-
sition of the light emitting cursor device 10.’ Geva
further discloses measuring the light intensity ‘by
the two light sensor arrays 12 and 28 of FIG. 6’ for
the ‘intensity/distance computation function 17’ ‘to
determine the position of the light emitting cursor
device 10 in the third, “z” dimension,’ as shown in
Figure 7. A POSITA would have been motivated to
include determining the three-dimensional position
of the stylus based on the intensity of the beam of
electromagnetic radiation, as taught by Geva, into
Keely’s notepad computer because Keely considers
the pen’s three-dimensional position in displaying
tool options and selection.” J.A. 302–03 (emphasis
added) (citations and figure omitted).
Also pertinent is that in discussing claim limita-
tion [1B], Samsung relied on Dr. Bederson’s declaration
submitted with the Petition to support the statement that
“Keely’s tool icons from Figure 6 have been superimposed
to show how the display screen [] forms a touch-sensitive
plane which is compatible with Geva’s planer [sic] ele-
ment 14.” J.A. 278 (citing J.A. 377–78). Notably,
Dr. Bederson further testified in his declaration that
“Keely’s touch-sensitive plane can be used as Geva’s planar
element,” J.A. 378 (emphasis added).
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 18
On this record, we cannot say the Board abused its dis-
cretion in reading Samsung’s Petitions to exclude Geva’s
planar element 14 and include the hardware used by Keely
(i.e., the digitizer from Keely II). This is not a question of
what we would consider the combination disclosed in the
Petitions to be, or not to be, if we reviewed it in the first
instance, but instead whether the Board’s determination
was “clearly unreasonable, arbitrary, or fanciful” or that
the record “contains no evidence on which the Board could
rationally base its decision.” Ericsson, 901 F.3d at 1379.
Samsung’s reliance on Dr. Bederson’s testimony that
“Keely’s touch-sensitive plane can be used as Geva’s planar
element” to support the statement that Keely’s touch-sen-
sitive plane “is compatible with” Geva’s planar element 14
provides record evidence from which the Board could ra-
tionally conclude Geva’s planar element was not included
in the combination but instead was replaced by portions of
Keely.8 See J.A. 278 (citing J.A. 377–78).
Other statements in the Petition further support the
reasonableness of the Board’s determination that Samsung
relied on the hardware from Keely’s disclosures in its orig-
inal combination. As the Board noted, the Petition de-
scribed how a skilled artisan would understand that using
Keely’s “‘notebook’ or ‘notepad’ computer includes all of the
components, including the display, processors, memory,
sensors, and other components,” J.A. 19 (quoting J.A. 278),
8 While Samsung’s use of the term “compatible with”
in its Petition may be ambiguous in a vacuum as to how the
combination used Keely’s touch-sensitive plane vis-à-vis
Geva’s planar element, any such ambiguity was removed
by Dr. Bederson’s statement that Keely’s touch-sensitive
plane can be used as Geva’s planar element. As for Sam-
sung’s attempts to mitigate the import of its own expert’s
testimony through a later declaration purporting to clarify
his intent, we agree with the Board that “using the word
‘with’ in place of ‘as’” has an entirely different meaning that
in this situation created a new expert opinion proposing a
new combination. J.A. 28 (quoting J.A. 4142).
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 19
before going on elsewhere to describe the use of the com-
puter device. The Petition also describes in its element-by-
element analysis how Keely’s display screen “forms a
touch-sensitive plane,” J.A. 19–20 (quoting J.A. 278–79),
and that a skilled artisan “would have understood that
Keely determines the three-dimensional position of the sty-
lus corresponding to a first selectable icon from among se-
lectable icons,” J.A. 20 (quoting J.A. 288).9 Moreover, none
of the statements in the Petition clearly state the combina-
tion Samsung advances on appeal—i.e., Geva’s planar ele-
ment being placed on top of Keely’s LCD display. If this
was Samsung’s intended combination, it could have unam-
biguously said so in its Petitions. And it is a petitioner’s
burden to “define the scope of the litigation all the way from
institution through to conclusion.” SAS Inst., Inc. v. Iancu,
584 U.S. 357, 367 (2018).
Indeed, when pressed at oral argument where in the
Petitions Samsung disclosed the combination it now ad-
vances,10 Samsung’s counsel consistently directed this
9 The Board further explained how Keely discloses
“that it ‘is directed to interface elements of a pen based,
notepad or notebook computer, the hardware of which is
described in detail in’ Keely II”—thus disagreeing with
Samsung’s argument that Keely is agnostic as to the hard-
ware used. J.A. 20 & n.6 (quoting J.A. 1334). Substantial
evidence from Keely itself supports the Board’s determina-
tion. See, e.g., J.A. 1334.
10 Samsung again attempted to refine its combination
at oral argument, where it described its intended combina-
tion as using the software of Keely with the planar element
of Geva. Even with this formulation of the combination,
Samsung could not point to where this was clearly articu-
lated in the record before the Board, let alone in the Peti-
tions. Instead, when pressed by this court about its initial
citation to the Petition for the ’070 patent regarding this
formulation of the combination, Samsung pointed this
court to its reply briefing, specifically the language that the
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 20
court to the Petition’s disclosure for limitation [1H] in the
’070 patent, which does not cite to Geva at all. See, e.g.,
Oral Arg. at 14:42–15:38 (citing J.A. 287) (“[Samsung’s
Counsel:] I would again direct your Honors to [J.A.] 287,
that shows Keely’s LCD . . . . [Court:] Does it show . . .
Geva’s sensor array is being placed on top of Keely’s con-
ventional LCD? [Samsung’s Counsel:] That was what we
intended when we made this figure. It does not superim-
pose this rectangle onto this rectangle. We do make that
super[im]position in the reply.” (emphasis added)).11
Counsel pointed to the combination of Keely’s Figures 9
and 6 as somehow disclosing Samsung’s intent to tell the
Board in its Petition that it was relying on Keely’s software
but not its digitizer, which it was instead replacing with
Geva’s planar element. See Oral Arg. at 10:57–11:32,
17:13–18:32. It is unclear how the Board was to under-
stand such an intent when both figures are from Keely and
nothing from Geva, let alone planar element 14, is dis-
closed.12 The Board should not have to divine the intent of
“combination [was] Geva’s input functionality . . . [with]
Keely’s user interface features.” Oral Arg. at 11:34–13:44
(citing Samsung’s reply briefing at J.A. 3887–88). But as
we noted, even this language is broad and provides little
clarification to know what from each of the references was
being used, and counsel did not point to other specific lan-
guage in its briefing. Oral Arg. at 13:58–14:42.
11 The dissent supposes that Samsung’s counsel
merely transposed page numbers in this colloquy with the
court. See Dissent Op. 6. We respectfully disagree with
the dissent, however, that “Samsung’s counsel was clearly
referring to page 278,” id., as counsel was describing a fig-
ure, and there is no figure on J.A. 278.
12 To the extent Samsung’s counsel attempted at oral
argument to relate aspects of an annotated figure from
Keely included in its Petition to Figure 6 of Geva, see Oral
Arg. at 17:13–18:32, we are not persuaded for two rea-
sons: (1) the supporting passage describing the annotated
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 21
a petitioner separate from what is explicitly described in
the petition grounds themselves—indeed, doing so could
constitute legal error. Sirona Dental Sys. GmbH v. Institut
Straumann AG, 892 F.3d 1349, 1356 (Fed. Cir. 2018) (stat-
ing that the Board is not permitted “to deviate from the
grounds in the petition”); Koninklijke Philips N.V.
v. Google LLC, 948 F.3d 1330, 1336 (Fed. Cir. 2020) (hold-
ing that the Board erred by raising an obviousness theory
based on a combination not provided in the petition).
While there may also be statements in the Petitions
that could reasonably be read to support Samsung’s posi-
tion, that is not the standard we apply on review. Med-
tronic, Inc. v. Teleflex Innovations S.à.r.l., 69 F.4th 1341,
1348 (Fed. Cir. 2023) (“If the evidence will support several
reasonable but contradictory conclusions, we will not find
the Board’s decision unsupported by substantial evidence
simply because the Board chose one conclusion over an-
other plausible alternative.” (quoting Velander v. Garner,
348 F.3d 1359, 1378 (Fed. Cir. 2003))). And Samsung has
not shown that the Board’s conclusion as to what combina-
tion was disclosed in Samsung’s Petitions was unreasona-
ble.13
figures from the Petition on J.A. 288 specifically addresses
the color coding with no reference to Geva; and (2) Geva’s
Figure 6 on J.A. 279 comes from the Petition’s discussion
of limitation [1B], which is fairly read as not including
Geva’s planar element, as discussed above.
13 The dissent quotes several statements from the pe-
tition for review of the ’369 patent. See Dissent Op. 5. As
we previously noted, Samsung itself concedes “the ’369 Pe-
tition was substantially similar to the ’070 Petition in de-
scribing its combination,” Appellants’ Br. 17, Samsung
does not argue that the combination could be read differ-
ently between the two Petitions, and the parties mainly
cite to the record for the ’070 Petition. To be sure, in con-
sidering the parties’ arguments and reaching our decision
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 22
Samsung also contends that the Board committed legal
error by violating the Administrative Procedure Act (APA)
because it failed to consider all of Samsung’s arguments
and evidence, as it only selectively quoted from the Peti-
tions and ignored Samsung’s explicit references to planar
element 14. This contention is belied by the record. The
Board summarized the parties’ arguments, addressed the
portions of the Petitions relevant to its affirmative analy-
sis, and then spent ten pages addressing and finding un-
persuasive Samsung’s arguments to the contrary from each
stage of the relevant briefing, including explicitly stating
that it had considered “all discussion of Geva’s planar ele-
ment in the Petition.” J.A. 29. There is a difference be-
tween the Board failing to consider a party’s arguments
and the Board merely being unpersuaded by a party’s ar-
guments. And on the record before us, we cannot say that
the Board was required to do more.
Because we affirm the Board’s determination that
Geva’s planar element 14 was not included in the prior art
combination asserted in Samsung’s Petitions, we need not
address the other issues raised by Samsung. A petitioner
is held to the unpatentability grounds advanced in its peti-
tion. See, e.g., Intelligent Bio-Sys., Inc. v. Illumina Cam-
bridge Ltd., 821 F.3d 1359, 1369 (Fed. Cir. 2016) (“It is of
the utmost importance that petitioners in the IPR proceed-
ings adhere to the requirement that the initial petition
identify with particularity the evidence that supports the
grounds for the challenge to each claim. . . . Unlike district
here, we assessed all relevant statements made in both the
’070 and ’369 Petitions. And, as acknowledged, there are
certain statements in the Petitions that, while not suffi-
cient, are more favorable to Samsung’s arguments on ap-
peal. But, looking at all the statements in the Petitions,
including those specifically pulled out and quoted by the
dissent, nothing changes our conclusion that under the
proper standard of review, Samsung has failed to show the
Board’s reading of the combination disclosed in the Peti-
tions was an abuse of discretion.
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 23
court litigation—where parties have greater freedom to re-
vise and develop their arguments over time and in response
to newly discovered material—the expedited nature of
IPRs bring[s] with it an obligation for petitioners to make
their case in their petition to institute.” (quotation marks
and citation omitted)); Wasica Fin. GmbH v. Cont’l Auto.
Sys., Inc., 853 F.3d 1272, 1286 (Fed. Cir. 2017) (“After [pa-
tent owner] pointed out the flaws of this position, [peti-
tioner]’s ensuing arguments to the Board and to us
effectively abandoned its petition in favor of a new argu-
ment. . . . Rather than explaining how its original petition
was correct, [petitioner]’s subsequent arguments amount
to an entirely new theory of prima facie obviousness absent
from the petition. Shifting arguments in this fashion is
foreclosed by statute, our precedent, and Board guide-
lines.”); Henny Penny Corp. v. Frymaster LLC, 938 F.3d
1324, 1330–31 (Fed. Cir. 2019) (“[A]n IPR petitioner may
not raise in reply an entirely new rationale for why a claim
would have been obvious.” (quotation marks and citation
omitted)); Corephotonics, 84 F.4th at 1002 (“Any marked
departure from the grounds identified with particularity in
the petition would impose ‘unfair surprise’ on the patent
owner and, consequently, violate both the APA and the IPR
statute.” (quoting Arthrex Inc. v. Smith & Nephew, Inc.,
935 F.3d 1319, 1328 (Fed. Cir. 2019)). Here, Samsung pro-
posed what was undisputedly an inoperable combination
for all grounds in its Petitions. After reaching this conclu-
sion, the Board needed to go no further, and this court will
not do so. Cf. Intelligent Bio-Sys., 821 F.3d at 1369 (“Once
the Board identifies new issues presented for the first time
in reply, neither this court nor the Board must parse the
reply brief . . . .”).
CONCLUSION
We have considered Samsung’s arguments and find
them unpersuasive. For the foregoing reasons, we affirm
the Board’s holding that Samsung did not carry its burden
to show that claims 1–18 of the ’070 patent and claims 1–
17 of the ’369 patent are unpatentable.
AFFIRMED
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N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SAMSUNG ELECTRONICS CO., LTD., SAMSUNG
ELECTRONICS AMERICA, INC.,
Appellants
v.
POWER2B, INC.,
Appellee
______________________
2023-2121, 2023-2122
______________________
Appeals from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. IPR2022-
00315, IPR2022-00325.
______________________
D YK, Circuit Judge, dissenting.
The issue here is whether the petitioner’s proposed
combination of Geva and Keely satisfies claim limitation
1[B] (and related claim limitations 10[B] and 16[B]) in the
’070 patent that teach a “display screen forming a touch
sensitive display plane” and similar claim limitations 1[G]
and 1[H] (and related claim limitations 11[E] and 11[F]) in
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 2
the ’369 patent.1 Samsung contends that a Keely-Geva
combination including the planar element of Geva would
satisfy the limitations. Without reaching that issue, the
majority affirms the Board’s determination that Samsung
did not propose a combination that utilized Geva’s planar
element. In my view, as the dissenting judge in the ’369
IPR proceedings noted, the Board plainly misread the pro-
posed combination. I respectfully dissent from the major-
ity’s affirmance of the Board.
I
Both challenged patents are directed toward an input
system, such as a stylus, that is used to control electronic
devices through electromagnetic radiation. Part of the
Board’s confusion apparently stems from the fact that both
Keely and Geva disclose systems with touch screen ele-
ments, including touch sensitive displays and styluses, and
both include digitizers. Keely’s invention uses a coil-based
digitizer, which “produc[es] an electromagnetic field which
interacts with one or more coils in the pen from which the
pen position, angle, and stylus pressure are determined.”
J.A. 1419 col. 4 ll. 23–25. But this digitizer did not satisfy
the claim limitations because the asserted patents claim
devices that use “light sensors,” ’369 patent, claim 1, or a
“sensor array . . . configured to detect . . . electromagnetic
radiation” as digitizers. ’070 patent, claim 1. Geva dis-
closes what it characterizes as an improved digitizer over
coil-based electromagnetic digitizers previously known in
the art using light sensors in a sensor array “disposed at
first and second edges of the planar element 14.” J.A. 1363
1 The ’369 patent uses somewhat different lan-
guage—“a processing unit configured to . . . determine . . .
movement of [an] object relative to [an] interactive device
in a third dimension of [a] 3D space; and execute, based on
the movement of the object, a function. . . .”
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 3
col. 8 ll. 37–38. The use of this planar element in the
Keely-Geva combination is alleged to satisfy the disputed
claim elements. The Board concluded, first, that Samsung
did not propose using the planar element from Geva in its
combination, but rather the coil-based digitizer from Keely.
And second, the Board found that even if Samsung’s pro-
posed combination included Geva’s planar element, it did
not propose removing the coil-based digitizer from Keely,
so the proposed combination would be redundant.
II
As to the first conclusion, the Board found that the por-
tions of Samsung’s petitions setting forth its proposed com-
bination “include no express reference to planar element
14,” J.A. 23, and that “nothing in the Petition[s] indicate[]
that Petitioner’s proposed combination is placing Geva’s
planar element on top of Keely’s display.” J.A. 29, 66.
These findings are clearly erroneous. Samsung was quite
clear that it proposed using the planar element from Geva
to teach limitations 1[B], 10[B], and 16[B] of the ’070 pa-
tent and limitations 1[G], 1[H], 11[E], and 11[F] of the ’369
patent. Indeed, the planar element, the light sensors dis-
posed within planar element 14, and a processing device
used to received signals from the light sensors disposed
within planar element 14 are the only elements that Sam-
sung proposed to use from Geva.
The panel majority quotes at length from the ’070 Peti-
tion, which repeatedly references the planar element from
Geva. The quoted portions of the ’070 Petition themselves
reference that Geva’s planar element in included in Sam-
sung’s combination. In arguing its combination of Keely
and Geva disclosed elements 1[B], 10[B], and 16[B], Sam-
sung illustrated how Keely’s “display screen (outlined in
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 4
red) forms a touch-sensitive plane which is compatible with
Geva’s plan[a]r element 14 (annotated in red).” J.A. 278.
J.A. 279. This sentence and image show the proposed com-
bination using planar element 14 from Geva. So too does
Samsung’s argument in discussing elements 1[C], 10[C],
and 16[C] that “[i]t would have been obvious to a POSITA
to include [Geva’s] sensor arrays disposed in the ‘notebook
computer’ housing and forming a sensitive layer in a sensor
plane proximate to the display screen 12 of Keely . . . .”
J.A. 280 (emphasis added). Further, the ’070 Petition dis-
cusses Geva’s planar element in the context of how “[i]t
would have been obvious to include Geva’s sensor plane
that is substantially parallel to the touch-sensitive display
plane.” J.A. 299. Each reference can only be read to sug-
gest a combination of Geva’s planar element 14 with
Keely’s display.
Indeed, Power2B in its patent owner response acknowl-
edged that skilled artisans would understand that Geva’s
planar element is intended to be placed above LCD dis-
plays like the one disclosed in Keely. It stated: “Geva’s
teachings are unambiguous, and a POSITA would have un-
derstood that Geva’s ‘improved alternative arrangement’
provides a planar element—not a display—designed to sit
on-top of a display.” J.A. 2513. Further, Samsung’s com-
bination of Keely and Geva used the light-emitting cursor
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 5
device of Geva, rather than Keely’s coil-based pen. As the
Board agreed, if Geva’s light-emitting pen were not used
with Geva’s planar element, the system would be inopera-
ble because the light from the light-emitting pen of Geva
would not be properly detected.
Samsung’s discussion of a combination of Keely and
Geva that includes planar element 14 is also clear in the
’369 Petition. In its discussion of elements 1[G], 1[H],
11[E], and 11[F] of the ’369 patent, Samsung argued “[a]
POSITA would have understood that Geva’s ‘z’ dimension
corresponds to the distance from Geva’s pen to the planar
element which is continuously calculated as the pen moves
positions and changes the intensity of light sensed by light
sensor arrays 12 and 28,” J.A. 4665 (emphasis added), al-
lowing for tools and associated processes to begin “[o]nce
the pen is pulled up.” J.A. 4666. Likewise, Samsung ar-
gued that skilled artisans “would have used Geva’s light
sensor arrays detecting light from the ‘light emitting cursor
device’ incident on planar element 14 (outlined in red in
Figure 6) to detect light on Keely’s display screen . . . be-
cause doing so would be a simple design choice in order to
collect the positional input for ‘interacting’ with electronic
documents.” J.A. 4655 (citing J.A. 4754). Therefore, the
’369 Petition explicitly suggests a combination of Keely and
Geva that includes planar element 14. This is also the com-
bination that Board understood when it decided to institute
the ’369 IPR proceedings, as the Board stated that Sam-
sung “relies on Geva’s teachings relating to light sensor ar-
rays 12 and 28” including that “‘[t]he light sensor arrays 12
and 28 preferably compromise a multiplicity of light sens-
ing elements and are disposed at first and second edges of
the planar element 14.’” J.A. 6474 (alteration in original)
(quoting J.A. 1363 col. 8 ll. 36–38).
Notably, the panel majority does not dispute that these
explicit statements in the ’369 Petition are sufficient to pro-
pose a combination of Keely and Geva that includes Geva’s
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 6
planar element. If the two petitions are to be treated the
same, as the majority concludes, Majority Op. 7 n.4, I fail
to see how the language in the ’369 Petition cannot over-
come any ambiguity in the ’070 Petition.
In concluding that the ’070 Petition can be read to ex-
clude planar element 14 from Samsung’s proposed combi-
nation, the panel majority relies in part on what appears
to be a transposition of page numbers that Samsung’s coun-
sel made at oral argument to find Samsung did not direct
the court to a disclosure in its original Petition of the pro-
posed combination. Majority Op. at 19–20 (discussing one
statement at oral argument referencing page 287 of the
Joint Appendix). In context, Samsung’s counsel was
clearly referring to page 278 and the corresponding figure
on page 279 of the Joint Appendix, and counsel directed the
court to the correct page earlier in the oral argument. Oral
Arg. at 7:54–8:49 (“[Samsung’s counsel]: If you look at the
petition, at Appendix page 278, this is where we set forth
the combination . . . .”); 15:14–15:38 (discussing figure “on
the top of page 279”).2 This matched the evidence Samsung
presented in its briefing that it argued disclosed the pro-
posed combination including planar element 14 in the con-
text of elements 1[B], 10[B], and 16[B]. Appellants’ Br. 27–
28 (citing J.A. 278).
2 The majority concludes counsel’s discussion of the
figure on page 279 of the Joint Appendix is not persuasive
because the discussion of limitation 1[B] preceding the fig-
ure “is fairly read as not including Geva’s planar element.”
Majority Op. 21 n.12. The figure, which is in the context of
Samsung’s discussion of limitations 1[B], 10[B], and 16[B],
is a further expansion of Samsung’s express explanation on
the previous page that Keely’s display screen is “compati-
ble with” Geva’s planar element 14 in its proposed combi-
nation. J.A. 278–79.
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 7
In support of the Board’s decision, the majority also re-
lies on a declaration by Samsung’s expert, Dr. Bederson,
submitted with the ’070 Petition, which states that “Keely’s
touch-sensitive plane can be used as Geva’s planar ele-
ment.” Majority Op. 18 (emphasis removed) (quoting
J.A. 377–78). Admittedly, this might suggest the use of
Keely’s touch-sensitive plane as a replacement for Geva’s
planar element. However, the expert’s declaration cannot
override the petition’s plain language. The ’070 Petition
does not quote Dr. Bederson’s statement and never sug-
gests Keely’s touch-sensitive plane replaces Geva’s planar
element 14. Rather, as the Board noted, Samsung asserted
that Keely’s display screen “forms a touch-sensitive plane
which is compatible with Geva’s plan[a]r element 14.”
J.A. 15 (quoting J.A. 278). This is not inconsistent with
Samsung’s proposed combination, but rather defines it.
Further, Dr. Bederson’s declaration in the ’070 IPR pro-
ceedings do not have any bearing on the ’369 IPR proceed-
ings, where Dr. Bederson’s declaration did not include this
language.
III
While the majority apparently does not rely on this, the
Board’s finding that Samsung’s proposed combination cre-
ated a redundancy by using Keely’s coil-based digitizer in
conjunction with Geva’s digitizer is also incorrect. The only
reference to a “digitizer” in both petitions is (quoting Geva
in both) that “Geva is designed to ‘work effectively with a
liquid crystal display (LCD) screen’ as ‘an improved alter-
native arrangement for determining the position of digi-
tizer input elements.’” J.A. 280–81 (quoting J.A. 1356–57);
accord J.A. 4656 (quoting J.A. 1356–57). This does not
suggest retaining a coil-based digitizer. To the contrary, it
suggests replacing the coil-based digitizer with the alter-
native digitizer disclosed in Geva—which Geva itself de-
scribes as an “improved alternative arrangement”—that
includes planar element 14. J.A. 1357 col. 2 ll. 6–21.
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SAMSUNG ELECTRONICS CO., LTD. v. POWER2B, INC. 8
IV
The Board also erred in rejecting Samsung’s reply ar-
guments. On reply, Samsung responded to arguments
made in Power2B’s responses that relied on the same com-
bination disclosed in Samsung’s petitions. For example,
Samsung argued that the Board “readily and correctly rec-
ognized Petitioner’s combination” in both decisions to insti-
tute IPR proceedings by referencing Geva’s teaching
related to planar element 14. J.A. 3890; accord J.A. 8448.
Samsung further argued that Power2B “acknowledges that
Geva’s input system, including its planar element, would
have been placed on top of Keely’s conventional LCD” in its
patent owner responses. J.A. 8449; accord J.A. 3891 (cit-
ing J.A. 2513). These arguments thus did not constitute
“‘entirely new rationale[s]’ worthy of being excluded.” Er-
icsson Inc., v. Intell. Ventures I LLC, 901 F.3d 1374, 1381
(Fed. Cir. 2018) (quoting Intelligent Bio-Systems Inc. v. Il-
lumina Cambridge, Ltd., 821 F.3d 1359, 1370 (Fed. Cir.
2016)). These arguments “merely expand[] on a previously
argued rationale” and thus are permissible clarifications of
the arguments Samsung put forward in its petitions. Id.;
cf. Axonics, Inc. v. Medtronics, Inc., 75 F.4th 1374, 1380
(Fed. Cir. 2023) (holding Board abused discretion in failing
to consider Petitioner’s reply arguments related to claim
construction).
Because the Board clearly erred in determining Sam-
sung’s petitions failed to disclose a combination of Keely
and Geva that included Geva’s planar element 14, I re-
spectfully dissent. On the merits, I would hold that the
Board’s determinations that the Keely-Geva combination
does not satisfy the claim limitations and that there was no
motivation to combine Keely and Geva are not supported
by substantial evidence, largely for the reasons cited in the
dissent in the ’369 IPR proceedings.
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