Rfcyber Corp. v. John A. Squires, Under Secretary of Commerce for Intellectual Property

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RFCYBER CORP.,
Appellant
v.
JOHN A. SQUIRES, UNDER SECRETARY OF
COMMERCE FOR INTELLECTUAL PROPERTY
AND DIRECTOR OF THE UNITED STATES
PATENT AND TRADEMARK OFFICE,
Intervenor
______________________
2024-1614
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2022-
01256.
______________________
Decided: December 17, 2025
______________________
RICHARD MATTHEW COWELL, Fabricant LLP, Rye, NY,
argued for appellant. Also represented by ALFRED ROSS
FABRICANT, PETER LAMBRIANAKOS, VINCENT J. RUBINO, III.
OMAR FAROOQ AMIN, Office of the Solicitor, United
States Patent and Trademark Office, Alexandria, VA,
Case: 24-1614 Document: 37 Page: 1 Filed: 12/17/2025

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RFCYBER CORP. v. SQUIRES 2
argued for intervenor. Also represented by PETER J. AYERS,
ROBERT MCBRIDE.
______________________
Before LOURIE and STOLL, Circuit Judges, and CHUN,
District Judge.1
STOLL, Circuit Judge.
Apple Inc. filed a petition with the Patent Trial and Ap-
peal Board challenging claims 1–11 of U.S. Patent
No. 11,018,724 as unpatentable as obvious over asserted
prior art references. RFCyber Corp. appeals from the
Board’s Final Written Decision determining all challenged
claims are unpatentable as obvious.2 We affirm.
On appeal, RFCyber does not dispute the Board’s fac-
tual findings or the merits of the Board’s obviousness de-
termination. Instead, RFCyber argues that the Board
erred by relying on a different “emulator device” than what
was presented in Apple’s Petition. We disagree. The Board
adopted the construction of “emulator device” that the par-
ties agreed to during claim construction in a parallel dis-
trict court proceeding—i.e., “hardware device, alone or
containing software, that pretends to be another particular
device or program that other components expect to interact
with.” J.A. 12 (emphasis added). The Board then found
that Apple identified hardware containing software—i.e.,
processor 400 storing and executing operating sys-
tem 314—as the “emulator device” of claim 1, consistent
1 Honorable John H. Chun, District Judge, United
States District Court for the Western District of Washing-
ton, sitting by designation.
2 After the appeal was docketed, Apple notified us
that it would not participate in this appeal. ECF No. 5.
The United States Patent and Trademark Office subse-
quently intervened. ECF No. 8.
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RFCYBER CORP. v. SQUIRES 3
with the agreed-upon construction. J.A. 33–34. That find-
ing is supported by Apple’s Petition and its expert testi-
mony.
Apple’s Petition expressly states, “[a] POSITA would
have understood that operating system 314 (running on
processor 400) is an emulator device because it is a hard-
ware device or program that executes [Near Field Commu-
nication] applications, allowing Buhot’s mobile phone to
pretend to be a contactless card with which other compo-
nents (e.g., card readers) may interact.” J.A. 131 (citing
J.A. 1647). Apple’s expert, Mr. Smith, similarly explained:
A POSITA would have understood that proces-
sor 400 executing operating system 314 facilitates
the emulation functionality . . . . Thus, a POSITA
would have understood that operating system 314
stored in the memory of processor 400 is an emula-
tor device because it is a hardware device or pro-
gram that allows the phone to pretend to be a
contactless card with which other components (e.g.,
card reader device) expect to interact.
J.A. 1647 (emphases added); see J.A. 3092–93.
Indeed, RFCyber acknowledged Apple’s theory from
the outset in its Patent Owner Preliminary Response. See
J.A. 199 (“Petitioner contends that, in its proposed combi-
nation, an entire ‘operating system 314 (running on proces-
sor 400) is an emulator device . . . allowing Buhot’s mobile
phone to pretend to be a contactless card with other com-
ponents.’” (omission in original) (quoting J.A. 131)).
RFCyber also conceded that a skilled artisan would have
known that an operating system is software or a program
that runs on hardware, such as a processor, consistent with
Apple’s theory and expert testimony. Oral Arg. at 2:30–
2:38, 4:00–4:13, https://www.cafc.uscourts.gov/oral-argu-
ments/24-1614_11062025.mp3; J.A. 2928 (RFCyber’s ex-
pert, Dr. Weaver, explaining that “an operating system is
a program” or “software that run[s] on hardware”). Thus,
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RFCYBER CORP. v. SQUIRES 4
the Board did not abuse its discretion in reading Apple’s
Petition as mapping the “operating system 314 (running on
processor 400)” onto the “emulator device” of claim 1. See
Corephotonics, Ltd. v. Apple Inc., 84 F.4th 990, 1002–03
(Fed. Cir. 2023) (“We review the Board’s assessments of
what has been argued to and put before it in an IPR for
abuse of discretion.”).
Even reviewed de novo as a question of legal error, Ap-
ple’s mapping of “operating system 314 (running on proces-
sor 400)” as the “emulator device” of claim 1 was apparent
from Apple’s Petition and expert testimony. See Corepho-
tonics, 84 F.4th at 1008 (“Whether a ground the Board re-
lied on is ‘new’ . . . is a question of law we review de novo.”
(citation modified)). As explained above, the Board’s Final
Written Decision did not depart “from the evidence and
theories presented by the petition.” See Arthrex Inc.
v. Smith & Nephew, Inc., 935 F.3d 1319, 1328 (Fed. Cir.
2019). Instead, as in Arthrex, “the Board properly relied on
the same references, the same disclosures, and the same
obviousness theories advanced by the petition and debated
by the parties.” See id. Thus, the Board did not err by
impermissibly relying on a new theory in its Final Written
Decision.
We have considered RFCyber’s remaining arguments,
but we do not find them persuasive. For the foregoing rea-
sons, we affirm the Board’s Final Written Decision in its
entirety.
AFFIRMED
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