Align Technology, Inc. v. Clearcorrect Operating, LLC

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

ALIGN TECHNOLOGY, INC.,
Appellant

v.

CLEARCORRECT OPERATING, LLC,
Appellee
______________________

2017-2106
______________________

Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2016-
00270.
______________________

Decided: August 22, 2018
______________________

WILLIAM M. JAY, Goodwin Procter LLP, Washington,
DC, argued for appellant. Also represented by DAVID
ZIMMER, Boston, MA.

SCOTT ANTHONY MCKEOWN, Ropes & Gray LLP,
Washington, DC, argued for appellee. Also represented
by DOUGLAS HALLWARD-DRIEMEIER.
______________________
2 ALIGN TECHNOLOGY, INC. v. CLEARCORRECT OPERATING, LLC

Before PROST, Chief Judge, TARANTO and CHEN, Circuit
Judges.
TARANTO, Circuit Judge.
Align Technology, Inc., owns U.S. Patent No.
6,699,037. In an inter partes review requested by
ClearCorrect Operating, LLC, the Patent Trial and Ap-
peal Board determined that claims 1, 2, 9, and 10 are
unpatentable. The Board’s determination rested on its
findings regarding the key prior art, U.S. Patent No.
6,068,482 (Snow), as teaching certain claim elements and
the motivation of a skilled artisan to combine that refer-
ence with others. Neither the Board’s decision nor
ClearCorrect’s brief on appeal reveals substantial evi-
dence in support of those findings. We vacate the Board’s
final written decision and remand the matter for further
proceedings consistent with this opinion. We affirm the
Board on the one issue of claim construction presented to
us.
I
The ’037 patent, with a 1997 priority date, addresses
realignment of teeth. The patent describes braces as
“conventionally” used for such orthodontic treatment.
’037 patent, col. 1, lines 22–26. Treatment with braces
was “tedious and time consuming” as well as “expensive,”
id., col. 1, lines 26–30; id., col. 2, lines 3–5; and braces
were “unsightly, uncomfortable,” carried the risk of infec-
tion, and made it difficult for the patient to brush and
floss teeth, id., col. 2, lines 5–9. The patent identifies
methods and systems to reposition teeth that, it says,
(1) reduce the amount of time required for the orthodon-
tist to create a treatment plan for each patient and over-
see each patient during treatment, (2) use less visible and
more comfortable appliances, (3) reduce the risk of infec-
tion, and (4) make brushing and flossing easier. Id., col.
2, lines 10–20.
ALIGN TECHNOLOGY, INC. v. CLEARCORRECT OPERATING, LLC 3

The patent describes producing, before treatment
even starts, a sequence of digital data representations of a
patient’s teeth—from an initial tooth arrangement to a
final tooth arrangement. Id., col. 5, lines 31–48. The
initial tooth arrangement may be created using both two-
dimensional and three-dimensional images. Id., col. 5,
lines 39–46 (“Conveniently, the initial digital data set
may be provided by conventional techniques, including
digitizing X-ray images, images produced by computer-
aided tomography (CAT scans), images produced by
magnetic resonance imaging (MRI), and the like. Prefer-
ably, the images will be three-dimensional images and
digitization may be accomplished using conventional
technology.”). The initial data set can then be “manipu-
lated” using “a suitable computer system equipped with
computer-aided design software.” Id., col. 5, lines 55–58.
After the teeth have been repositioned in the computer
representation, “a final digital data set representing the
desired final tooth arrangement will be generated and
stored.” Id., col. 6, lines 3–6. A plurality of digital data
sets is produced “representing a series of discrete tooth
arrangements progressing from an initial tooth arrange-
ment to a final tooth arrangement,” id., col. 6, lines 20–22,
using techniques such as interpolating in small incre-
ments, for an individual tooth, from its initial position to
its final position, id., col. 6, lines 22–33. Interpolation
may be linear or non-linear. Id., col. 6, lines 37–39.
A plurality of appliances is then fabricated based on
the “plurality of successive digital data sets” that “repre-
sent[] the target successive tooth arrangements.” Id.,
col. 6, lines 56–64. The set of appliances may be fabricat-
ed at the start of treatment and provided to the patient
“as a single package or system.” Id., col. 3, lines 52–56.
The time spent with the orthodontist is thereby reduced.
Id., col. 3, line 60 through col. 4, line 2.
Independent claims 1 and 9 describe the method for
fabricating appliances that incrementally reposition teeth
4 ALIGN TECHNOLOGY, INC. v. CLEARCORRECT OPERATING, LLC

based on digital data sets representing the arrangement
of teeth from an initial position to a final position. Claim
1 is representative:
1. A method for fabricating a plurality of
dental incremental position adjustment applianc-
es, said method comprising:
providing at the outset of treatment a plurali-
ty of digital data sets representing a plurality of
successive tooth arrangements progressing from
an initial tooth arrangement to a final tooth ar-
rangement for an individual patient; and
controlling a fabrication machine based on in-
dividual ones of the digital data sets to produce
the plurality of appliances for the individual pa-
tient.
Id., col. 15, lines 28–38. While the Board addressed both
the providing and the controlling steps of claims 1 and 9, 1
only the providing step is at issue in this appeal. De-
pendent claims 2 and 10 elaborate in ways that do not
alter the analysis on appeal. E.g., id., col. 15, lines 39–42
(claim 2: “A method as in claim 1, wherein providing the
digital data comprises providing a plurality of digital data
sets, wherein each set represents one of the successive
tooth arrangements.”). The ’037 patent expired in Octo-
ber 2017. See id., col. 1, lines 7–13.
ClearCorrect filed a petition for an inter partes review
of the ’037 patent under 35 U.S.C. §§ 311–19 challenging
claims 1, 2, 9, and 10 as unpatentable for obviousness

1 The Board noted in its decision that Align did not
address ClearCorrect’s arguments regarding the “control-
ling” step. Final Written Decision at 32, ClearCorrect
Operating, LLC v. Align Tech., Inc., No. IPR2016-00270
(P.T.A.B. Mar. 24, 2017), Paper No. 43 (Board Decision).
ALIGN TECHNOLOGY, INC. v. CLEARCORRECT OPERATING, LLC 5

under 35 U.S.C. § 103. The Board instituted a review for
obviousness based on the combination of U.S. Patent No.
6,068,482 (Snow), U.S. Patent No. 6,217,334 (Hultgren),
and U.S. Patent No. 2,467,432 (Kesling).
The Board issued a final written decision on March
24, 2017, concluding that all of the challenged claims are
unpatentable for obviousness based on the Snow, Hult-
gren, and Kesling combination. The Board construed the
“providing” step in claims 1 and 9 “to encompass digital
data sets that are not limited to three-dimensional images
of a patient’s teeth, such that the data includes the actual
shape of the patient’s teeth.” Board Decision at 19. The
Board found that Snow teaches the “providing” step in
claims 1 and 9. Id. at 31. It also found the “controlling”
step in claims 1 and 9 to be disclosed in Hultgren (appli-
cation filed in January 1997), which addresses scanning of
teeth for creation of a digital representation, and Kesling
(issued in 1949), which describes tooth adjustments based
on a physical model of teeth that has been cut up so that
individual teeth in the model can be repositioned. Id. at
32. The Board found that a skilled artisan would have
been motivated to combine Snow, Hultgren, and Kesling
“to replace Kesling’s labor-intensive process with a com-
puterized process, resulting in labor cost savings and
resulting in modeling of more precise teeth movement.”
Id. at 38. Finally, the Board gave little weight to Align’s
evidence on secondary considerations. Id. at 42–48. The
Board therefore determined that all challenged claims are
unpatentable for obviousness based on the Snow, Hult-
gren, and Kesling combination. Id. at 50.
Align timely appealed that decision. We have juris-
diction under 28 U.S.C. § 1295(a)(4)(A).
II
Align’s challenges on appeal focus on claim 1, to which
we limit our attention because neither party has provided
any sound reason why our conclusion as to claim 1 does
6 ALIGN TECHNOLOGY, INC. v. CLEARCORRECT OPERATING, LLC

not apply equally to claims 2, 9, and 10. Align principally
asserts that the Board erred in its finding as to what
Snow discloses and, relatedly, as to a skilled artisan’s
motivation to combine Snow with the other references. It
also challenges the Board’s discounting of secondary
considerations of non-obviousness. And it challenges the
Board’s claim construction. 2
We review the Board’s determination of obviousness
de novo and its underlying factual findings for substantial
evidence support. South Ala. Med. Sci. Found. v. Gnosis
S.P.A., 808 F.3d 823, 826 (Fed. Cir. 2015). Whether
ClearCorrect has demonstrated a motivation to combine
the identified prior art references is an underlying ques-
tion of fact that we review for substantial evidence sup-
port. See Redline Detection, LLC v. Star Envirotech, Inc.,
811 F.3d 435, 449 (Fed. Cir. 2015). “Substantial evidence
review asks ‘whether a reasonable fact finder could have
arrived at the agency’s decision’ and requires examination
of the ‘record as a whole, taking into account evidence
that both justifies and detracts from an agency’s deci-
sion.’” Intelligent Bio-Sys., Inc. v. Illumina Cambridge
Ltd., 821 F.3d 1359, 1366 (Fed. Cir. 2016).
A
The Board found that Snow teaches the “final tooth
arrangement for an individual patient” required by

2 Align preserved a challenge to the constitutionali-
ty of inter partes review, Appellant Br. 61–62, which we
reject based on Oil States Energy Services, LLC v.
Greene’s Energy Group, LLC, 138 S. Ct. 1365, 1370 (2018).
We reject as well Align’s contention that the Board shifted
the burden of persuasion in the proceedings. Appellant
Br. 30–31. The Board found ClearCorrect’s contentions
persuasive and that Align had not shown deficiencies in
those positions. See, e.g., Board Decision at 28–29.
ALIGN TECHNOLOGY, INC. v. CLEARCORRECT OPERATING, LLC 7

claim 1. Board Decision at 28–31. Align challenges that
finding, arguing that any final tooth arrangement shown
in Snow is generic, i.e., not for an actual individual pa-
tient. The Board’s opinion and ClearCorrect’s brief on
appeal do not point to substantial evidence to support the
Board’s finding. That finding, and hence the Board’s final
written decision resting on it, cannot stand; we therefore
vacate and remand. See, e.g., Personal Web Techs., LLC v.
Apple, Inc., 848 F.3d 987, 992–94 (Fed. Cir. 2017). We do
not foreclose the Board from addressing this factual issue
again on remand, but leave to the Board, acting within
applicable statutory and regulatory constraints, the
determination of whether and (if so) how to do so. See id.
at 994; Ariosa Diagnostics v. Verinata Health, Inc., 805
F.3d 1359, 1367 (Fed. Cir. 2015).
Snow relates to “storing and utilising 3D computer
graphic structures representative of a patient’s individual
tooth and jaw structure.” Snow, col. 1, lines 13–16. Snow
describes starting with a 3D “standard model” (on a
computer) of either of two generic tooth arrangements
(either male or female), id., col. 2, line 59 through col. 3,
line 2, and then manipulating that generic model—by
using patient-specific images or other information, and
“by means of translation, scaling and rotation” of individ-
ual teeth, id., col. 3, lines 45–46—to create a 3D “individ-
ualised model” of an individual patient’s teeth in their
“current position,” id., col. 1, line 41. See id., col. 1, lines
38–44; id., col. 3, lines 14–65. That “individualised 3D
model” of a patient’s pre-correction mouth can be used “for
treatment planning and record keeping.” Id., col. 3, lines
33–34; see id., col. 4, lines 7–9. In particular, it can be
used to show “a sequence of images mapping movements
of teeth from a first position corresponding to the patient’s
current state to an idealised second position.” Id., col. 1,
lines 46–48. The only description in Snow of an idealized
second position as an endpoint of a step-by-step transition
is the generic standard model (male or female) out of
8 ALIGN TECHNOLOGY, INC. v. CLEARCORRECT OPERATING, LLC

which the individualized model of correction-required
teeth was created: Snow describes interpolating from the
individualized model back to the standard model. Id., col.
4, lines 23–27.
Align argues that Snow does not teach a final tooth
arrangement for an individual patient. Align points to
the fact that the standard model endpoint is generic, not
individualized, and that no other endpoint of tooth move-
ments is identified in Snow. Align points also to testimo-
ny by ClearCorrect’s expert, Dr. Martz, seemingly
indicating that the final arrangement in Snow, the stand-
ard model, would not be a final arrangement for an indi-
vidual patient. J.A. 6912–14, 6971–73. Align stresses
that individual patients have varying jaws and tooth sizes
and, in particular, would not actually have their teeth re-
sized in tooth-repositioning treatment—yet Snow, having
initially “scaled” particular teeth from the standard model
to arrive at the individualized pre-correction model,
describes the later interpolation process as returning to
the standard model, seemingly requiring the re-sizing of
the individual’s teeth.
Neither the Board’s decision nor ClearCorrect’s brief
identifies how, contrary to Align’s arguments, Snow
teaches an individualized final tooth arrangement. They
do not provide answers to Align’s key contentions as to
Snow’s failure to teach the standard model (or some
modified version of the standard model) as a final tooth
arrangement for an individual patient. And they do not
show support for understanding Snow to teach that one of
the intermediate stages in Snow is a final tooth arrange-
ment for an individual patient.
As to the latter point, the Board, in footnote 10 of its
decision, referred to ClearCorrect’s expert Dr. Martz and
stated that it “credit[ed] Dr. Martz’s testimony that a
person of ordinary skill in the art would understand that,
with Snow’s modeling, a treatment goal could be repre-
ALIGN TECHNOLOGY, INC. v. CLEARCORRECT OPERATING, LLC 9

sented by any of the intermediate digital representations
of the tooth arrangements generated between the initial
and final arrangements.” Board Decision at 29 n.10
(citing ClearCorrect’s Petition at 17 and Dr. Martz’s
declaration at ¶ 42). But the cited paragraph of Dr.
Martz’s declaration states only that “[s]ince the plurality
of digital data sets map the movements from the initial or
current position of a patient’s teeth to the idealized sec-
ond position, it would be understood that the plurality of
digital data sets can be generated at any point in time
during treatment including at the outset or later in
treatment. . . . [B]ecause the movements are mapped from
the current state of the patient’s teeth, the plurality of
digital data sets necessarily represent successive tooth
arrangements that have been customized and created for
each individual patient.” J.A. 1755–56. That simply does
not say or imply that any intermediate position on the
way toward to the standardized model endpoint in Snow
would itself be a final tooth arrangement for a patient.
Nor does it say how even the intermediate Snow steps
could be a tooth arrangement for an individual patient—
which Align suggests is not taught because actual pa-
tients do not have their teeth re-sized and, according to
Align’s reading of Snow, in returning to the standard
model, Snow discloses re-scaling by interpolation, so that
re-sizing occurs at each intermediate step. The Board did
not address the accuracy of this reading of Snow.
The Board’s footnote also cites ClearCorrect’s Petition
at 17, which asserts that “the plurality of digital data sets
representing the successive tooth arrangements are
customized and created for each individual patient, with
each set representing one of the successive tooth ar-
rangements.” J.A. 135. That conclusory assertion, which
is not evidence, does not even say that a pre-final member
of the Snow sequence would be a final tooth arrangement
for an individual patient. And the Petition at 17 cites
only two bits of evidence: Dr. Martz’s declaration at
10 ALIGN TECHNOLOGY, INC. v. CLEARCORRECT OPERATING, LLC

Paragraph 42; and Paragraphs 93 and 94 of the declara-
tion of Dr. Mah, a ClearCorrect employee. We have
already indicated why Paragraph 42 of Dr. Martz’s decla-
ration does not support the point at issue. As for Para-
graphs 93 and 94 of Dr. Mah’s declaration, we note: the
Board said in its footnote only that it was crediting Dr.
Martz, not Dr. Mah; and the only relevant portion of the
Mah paragraphs are a passing clause in Paragraph 93—
“the ‘idealised second position’, which could correspond to
any point in time during the treatment (such as an inter-
mediate or final tooth arrangement)”—in a sentence that
makes a different point, i.e., that for any given non-
starting position, a sequence of images intermediate
between the starting position and that position can be
generated. J.A. 1828. We can hardly rely on this clause—
itself distinguishing “intermediate” from “final”—as
supporting the Board’s finding on the point at issue,
especially when the Board did not say that it was reading
the Mah clause to make this point or crediting it or exam-
ining whether Snow actually supports such a reading in
light of Align’s arguments. 3

3 The Board may consider on remand what alterna-
tive arguments as to the final tooth arrangement limita-
tion were timely made by ClearCorrect and are supported
by the evidence. Without suggesting an answer to those
questions, we note the Board’s statement that ClearCor-
rect argues that “Snow’s individualized model would be a
representation of a patient’s actual teeth” and the Board’s
“see also” citation to its institution decision’s statement
that a skilled artisan “‘would have applied her creativity
to ensure that the variance in size and shape of the teeth
was acceptable or would modify the data accordingly’”
based on knowledge in the art regarding more accurate
ways to digitize the shape of individual teeth. Board
Decision at 26–27 (quoting J.A. 240). We note, too, Snow’s
ALIGN TECHNOLOGY, INC. v. CLEARCORRECT OPERATING, LLC 11

In these circumstances, we must set aside the Board’s
finding about Snow as to the claim element “final tooth
arrangement for an individual patient.” The deficiency in
this finding, we note, is independent of the issue of claim
construction discussed infra. Because this finding was a
premise of the Board’s obviousness determination—the
Board did not find the “providing” claim limitation taught
in any source outside Snow—the obviousness determina-
tion itself must be set aside.
B
The Board determined that Snow teaches the “provid-
ing” step and Hultgren and Kesling teach the “control-
ling” step in claims 1 and 9. Hultgren teaches “a system
of dental modeling and imaging which creates digital
images of teeth topography; and more particularly relates
to scanning a dental impression wherein a set of negative
image electronic data of the patient’s teeth and surround-
ing soft tissue is created which can be electronically
manipulated, displayed, stored and transmitted for uses
relating to creating dental appliances and diagnosis,
among others.” Hultgren, col. 1, lines 5–12. Kesling
discloses physical model building as a step in “the provi-
sion of improved [tooth positioning] appliances which are
adapted to be used to maintain or bring the teeth of a user
of such an appliance into a pre-determined ideal or desir-
able position without the necessity for the use of metallic

statement that “the structure of individual’s teeth in
respect of their size and shapes is substantially of low
variance across a general population,” Snow, col. 3, lines
2–5, and the Board’s quotation of ClearCorrect’s reply as
stating that a skilled artisan “‘would have applied her
creativity to ensure that any variance in the size and
shape of the teeth was acceptable, using actual 3D scans
to the extent necessary.’” Board Decision at 26 (quoting
J.A. 510).
12 ALIGN TECHNOLOGY, INC. v. CLEARCORRECT OPERATING, LLC

bands, wires, or any of the other appliances of the prior
art.” Kesling, col. 1, lines 3–8.
The Board determined that “a person having ordinary
skill in the art would have had a reason to combine the
teachings of Snow, Hultgren, and Kesling to replace
Kesling’s labor-intensive process with a computerized
process, resulting in labor cost savings and resulting in
modeling of more precise teeth movement.” Board Deci-
sion at 38. The Board further determined that the appli-
ance created by the prior art combination did not need to
“precisely” fit over the patient’s teeth and that the ’037
patent was not limited to appliances having a precise fit
over the teeth. Id. at 37–38. On appeal Align raises two
main challenges regarding the Board’s finding of a moti-
vation to combine—that the prior art combination would
not allow for the creation of a functional dental appliance
and that a skilled artisan would not be motivated to
create “an imprecise dental appliance.” Appellant Br. 37,
43.
We are not persuaded by Align’s argument that any
appliance created based on the teachings of Snow, Hult-
gren, and Kesling would be non-functional. The argu-
ment appears to rest on the premise that the only
functional appliances created as a set from pre-treatment
data must be ones that closely fit the contours of teeth.
We simply do not see in anything that Align has identified
to us why the Board had to accept this seemingly broad
non-functionality assertion. Nothing in Align’s own claim
language specifies degrees of fitness beyond functionality,
and the specification of Align’s patent indicates that a
precise fit is not required for the appliances contemplated.
’037 patent, col. 8, lines 50–64. And to the extent that
this position implicitly rests on the contention that the
asserted claims of the ’037 patent are limited to applianc-
es that closely fit the contours (shape) of teeth, that is a
claim construction we reject infra.
ALIGN TECHNOLOGY, INC. v. CLEARCORRECT OPERATING, LLC 13

Align’s other challenge to the motivation finding of
the Board has more merit—though we do not definitively
rule on it, but instead require that it be reconsidered on
the remand required for the reasons already set out. The
Board focused on a motivation to secure “precise teeth
movement” by making the posited combination, including
with Snow. But as we have discussed, Snow appears not
to produce a final arrangement having precision for the
individual patient. More broadly, the Board has not
explained adequately what “precise teeth movement”
means and how the combination of the prior art refer-
ences would allow for such “precise teeth movement.”
Without elaboration from the Board, we cannot discern
whether there was substantial evidence to support the
Board’s finding. See Personal Web Techs., 848 F.3d at
993–94 (vacating and remanding where inadequate
explanation of how a combination worked or, therefore,
why there was a motivation to make it).
C
The Board gave little weight to Align’s evidence of
secondary considerations of non-obviousness. Board
Decision at 42–48. On appeal, Align briefly challenges the
Board’s determination in that respect, focusing particular-
ly on commercial success, industry praise, and skepticism.
Appellant Br. 58–61.
To the extent that Align challenges certain Board
findings as unsupported by substantial evidence, we see
no merit in the challenges. To the extent that Align
argues that an obviousness determination should take
account of commercial success (or industry praise) that is
partly but not fully attributable to the merits of the
invention, we agree, but also conclude that the Board did
such an accounting here. Board Decision at 39–44; id. at
44 (citing Ormco Corp. v. Align Tech., Inc., 463 F.3d 1299,
1312 (Fed. Cir. 2006)); see Continental Can Co. USA, Inc.
v. Monsanto Co., 948 F.2d 1264, 1273 (Fed. Cir. 1991) (“It
14 ALIGN TECHNOLOGY, INC. v. CLEARCORRECT OPERATING, LLC

is not necessary . . . that the patented invention be solely
responsible for the commercial success, in order for this
factor to be given weight appropriate to the evidence,
along with other pertinent factors.”); Demaco Corp. v. F.
Von Langsdorff Licensing Ltd., 851 F.2d 1387, 1392–94
(Fed. Cir. 1988). Rather than rejecting that legal proposi-
tion, we read the Board’s decision as giving the evidence
of secondary considerations little weight in its overall
obviousness determination. When the Board reassesses
the issues of Snow’s disclosure and motivation to combine
on remand, it need not reconsider its factual findings on
secondary considerations, but it should, as always, give
those findings “weight appropriate to the evidence” in the
overall obviousness determination. Continental Can, 948
F.2d at 1273.
D
Align challenges the Board’s construction of the
“providing” step because the Board did not require that
the digital data sets consist of three-dimensional images
that include the actual shape of the patient’s teeth.
Board Decision at 18–19. We review the Board’s claim
construction, which was based on intrinsic sources only,
de novo. See Teva Pharms., USA, Inc. v. Sandoz, Inc., 135
S. Ct. 831, 841 (2015). We also apply the judicial con-
struction standard of Phillips v. AWH Corp., 415 F.3d
1303 (Fed. Cir. 2005) (en banc), not the broadest reasona-
ble interpretation standard. The patent has expired, the
parties agree that we should apply Phillips, and the
Board adopted its claim construction under both stand-
ards. Board Decision at 18.
We see no error in the Board’s construction. The lan-
guage of the claims says nothing to require that the
“appliances” conform to the contours of a patient’s teeth.
The language requiring that the data sets “represent[]”
tooth “arrangements” readily covers representations of
position and orientation, not necessarily each tooth’s
ALIGN TECHNOLOGY, INC. v. CLEARCORRECT OPERATING, LLC 15

shape. In particular, “arrangement” and “representation”
do not require something akin to a replica. Nothing in the
specification is to the contrary. Indeed, the specification
provides that any known positioners, removable applianc-
es, and retainers can be used to employ the claimed
methods and that “preferably, but not necessarily,” the
appliance will fit over all of the teeth. ’037 patent, col. 8,
lines 50–64. And the specification suggests that the
initial data set can be based only on two-dimensional
images (though three-dimensional images are preferred),
without describing use of such images to create a repre-
sentation of a tooth’s full shape. Id., col. 5, lines 31–54;
id., col. 9, lines 20–48. We therefore agree with the Board
that the claim element at issue should not be construed to
contain an actual-shape requirement.
III
The Board’s decision is affirmed in part and vacated
in part, and the matter is remanded for further proceed-
ings consistent with this opinion. Besides the matters
discussed here, the Board may address in the remand any
properly preserved contentions it found unnecessary to
address in the final written decision currently before us.
Costs awarded to Align.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED