Case: 20-1565 Document: 96 Page: 1 Filed: 03/16/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CYWEE GROUP LTD.,
Appellant
v.
GOOGLE LLC, SAMSUNG ELECTRONICS CO.,
LTD., LG ELECTRONICS INC., HUAWEI DEVICE
USA, INC., HUAWEI DEVICE CO., LTD., HUAWEI
TECHNOLOGIES CO., LTD., HUAWEI DEVICE
(DONGGUAN) CO., LTD., HUAWEI INVESTMENT &
HOLDING CO. LTD, HUAWEI TECH. INVESTMENT
CO. LTD., HUAWEI DEVICE (HONG KONG) CO.
LTD.,
Appellees
ANDREW HIRSHFELD, PERFORMING THE
FUNCTIONS AND DUTIES OF THE UNDER
SECRETARY OF COMMERCE FOR
INTELLECTUAL PROPERTY AND DIRECTOR OF
THE UNITED STATES PATENT AND TRADEMARK
OFFICE,
Intervenor
______________________
2020-1565, 2020-1567
______________________
Appeals from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. IPR2018-
01257, IPR2018-01258.
Case: 20-1565 Document: 96 Page: 2 Filed: 03/16/2021
2 CYWEE GROUP LTD. v. GOOGLE LLC
______________________
Decided: March 16, 2021
______________________
JAY P. KESAN, DiMuroGinsberg PC, Tysons Corner,
VA, argued for appellant. Also represented by CECIL E.
KEY, HENNING SCHMIDT; WILLIAM D. ELLERMAN, ARI
RAFILSON, MICHAEL W. SHORE, Shore Chan DePumpo LLP,
Dallas, TX.
MATTHEW A. SMITH, Smith Baluch LLP, Menlo Park,
CA, argued for all appellees. Appellee Google LLC also rep-
resented by ELIZABETH LAUGHTON; ANDREW BALUCH,
Washington, DC.
NAVEEN MODI, Paul Hastings LLP, Washington, DC,
for appellee Samsung Electronics Co., Ltd. Also repre-
sented by CHETAN BANSAL.
ANDREW V. DEVKAR, Morgan Lewis & Bockius LLP,
Santa Monica, CA, for appellee LG Electronics Inc. Also
represented by NATALIE A. BENNETT, Washington, DC;
JEREMY DEANE PETERSON, PV Law LLP, Washington, DC.
KRISTOPHER L. REED, Kilpatrick Townsend & Stockton
LLP, Denver, CO, for appellees Huawei Device USA, Inc.,
Huawei Device Co., Ltd., Huawei Technologies Co., Ltd.,
Huawei Device (Dongguan) Co., Ltd., Huawei Investment
& Holding Co. Ltd, Huawei Tech. Investment Co. Ltd.,
Huawei Device (Hong Kong) Co. Ltd. Also represented by
BENJAMIN MAX KLEINMAN, STEVEN MOORE, San Francisco,
CA.
MICHAEL S. FORMAN, Office of the Solicitor, United
States Patent and Trademark Office, Alexandria, VA, ar-
gued for intervenor. Also represented by THOMAS W.
Case: 20-1565 Document: 96 Page: 3 Filed: 03/16/2021
CYWEE GROUP LTD. v. GOOGLE LLC 3
KRAUSE, FARHEENA YASMEEN RASHEED, MEREDITH HOPE
SCHOENFELD.
______________________
Before PROST, Chief Judge, TARANTO and CHEN, Circuit
Judges.
PROST, Chief Judge.
Google LLC (“Google”) petitioned for inter partes re-
view (“IPR”) of claims 1 and 3–5 of U.S. Patent
No. 8,441,438 (“the ’438 patent”) and claims 10 and 12 of
U.S. Patent No. 8,552,978 (“the ’978 patent”), asserting
that the challenged claims are unpatentable as obvious.
Each of Google’s prior art combinations relied on Bach-
mann. 1 The Patent Trial and Appeal Board (“Board”) in-
stituted IPR and agreed with Google that the challenged
claims would have been obvious. Google LLC v. CyWee
Grp. Ltd., No. IPR2018–01257, Paper 87 (P.T.A.B. Jan. 9,
2020) (“’978 Decision”); Google LLC v. CyWee Grp. Ltd.,
No. IPR2018–01258, Paper 86 (P.T.A.B. Jan. 9, 2020)
(“’438 Decision”). CyWee Group Ltd. (“CyWee”) appeals.
We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A).
We affirm.
DISCUSSION
CyWee raises three challenges on appeal. First, Cy-
Wee argues that the Board erred in concluding that Google
disclosed all real parties in interest as required by
35 U.S.C. § 312(a)(2). Second, CyWee contends that the
IPR proceedings should be terminated because all the rul-
ings were made by administrative patent judges (“APJs”)
who were unconstitutionally appointed in violation of the
Appointments Clause, U.S. CONST. art. II, § 2, cl. 2. And
third, CyWee argues that the Board erred in concluding
1 U.S. Patent No. 7,089,148.
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4 CYWEE GROUP LTD. v. GOOGLE LLC
that Bachmann is analogous prior art with respect to the
challenged patents. We address these arguments in turn.
I
First, CyWee contends that the Board erred in conclud-
ing that Google met the real-party-in-interest disclosure
obligations of § 312(a)(2).
We are precluded from reviewing this challenge. In
ESIP Series 2, LLC v. Puzhen Life USA, LLC, 958 F.3d
1378, 1386 (Fed. Cir. 2020), we concluded that “the Board’s
§ 312(a)(2) real-party-in-interest determination is final
and non-appealable” under 35 U.S.C. § 314(d) because it
“raises an ordinary dispute about the application of an in-
stitution-related statute.” Id. (internal quotation marks
omitted); see also Thryv, Inc. v. Click-to-Call Techs., LP,
140 S. Ct. 1367, 1373–74 (2020); Cuozzo Speed Techs., LLC
v. Lee, 136 S. Ct. 2131, 2139 (2016).
CyWee attempts to distinguish this case from ESIP on
the basis that here, CyWee does not specifically challenge
the Board’s decision on institution but rather the Board’s
denial of CyWee’s post-institution motion to terminate the
proceedings in view of newly discovered evidence. But that
motion amounted to nothing more than a request for the
Board to reconsider its institution decision. The Board’s
decision on such a request is “final and nonappealable” un-
der § 314(d). See, e.g., Medtronic, Inc. v. Robert Bosch
Healthcare Sys., Inc., 839 F.3d 1382, 1384–85 (Fed. Cir.
2016); GTNX, Inc. v. INTTRA, Inc., 789 F.3d 1309, 1312
(Fed. Cir. 2015).
CyWee also argues that the Board erroneously denied
CyWee additional discovery, but the additional discovery
CyWee seeks relates solely to whether Google met its obli-
gations under § 312(a)(2). CyWee makes no argument for
reviewability of the Board’s discovery ruling if the Board’s
ruling that Google met its § 312(a)(2) burden is unreview-
able. Under these circumstances, CyWee’s challenge to the
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CYWEE GROUP LTD. v. GOOGLE LLC 5
Board’s discovery ruling is a subcomponent of its broader
challenge to the Board’s § 312(a)(2) determination and is
therefore similarly unreviewable.
II
Next, CyWee argues that we should terminate and dis-
miss the IPR proceedings with prejudice because the APJs
who handled the IPR were appointed in violation of the Ap-
pointments Clause.
Because the APJs were constitutionally appointed as of
the date this court issued Arthrex, Inc. v. Smith & Nephew,
Inc., 941 F.3d 1320 (Fed. Cir. 2019), and because Arthrex
issued before the final written decisions in this case, those
decisions were not rendered by unconstitutional panels.
See, e.g., Caterpillar Paving Prods. Inc. v. Wirtgen Am.,
Inc., 957 F.3d 1342, 1342–43 (Fed. Cir. 2020); Document
Sec. Sys., Inc. v. Nichia Corp., 813 F. App’x 599, 600
(Fed. Cir. 2020); see also Arthrex, 941 F.3d at 1340 (ex-
plaining that its holding extended to “cases where final
written decisions were issued”). We therefore reject Cy-
Wee’s Appointments Clause challenge.
III
Finally, CyWee contends that substantial evidence
does not support the Board’s conclusion that Bachmann is
analogous art with respect to the ’978 and ’438 patents. We
disagree.
The Board’s conclusion stems from two key findings,
both of which are supported by substantial evidence. First,
the Board determined that “improving error compensation
with an enhanced comparison method” was of “central im-
portance” to the inventors. ’978 Decision, at 58; ’438 Deci-
sion, at 29. This finding is supported by substantial
evidence, including the patents’ specifications, CyWee’s
own characterization of the patents, and expert testimony.
See, e.g., ’978 Decision, at 56–58; ’438 Decision, at 28–29.
Second, the Board found that Bachmann was reasonably
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6 CYWEE GROUP LTD. v. GOOGLE LLC
pertinent to this problem, as Bachmann “illustrates collec-
tion of data from the same kinds of sensors” and “correct[s]
for the same kinds of errors that were of concern to the in-
ventor[s].” ’978 Decision, at 59; ’438 Decision, at 31. This
finding is also supported by substantial evidence. See, e.g.,
’978 Decision, at 59–60; ’438 Decision, at 31. Accordingly,
substantial evidence supports the Board’s conclusion that
Bachmann is analogous art as it is “reasonably pertinent
to the particular problem with which the inventor is in-
volved.” In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004).
CyWee counters that the Board’s determination is in-
consistent with its finding that the “field of 3D Pointing
Devices presents distinct problems that technology such as
that disclosed in [Bachmann] cannot address.” Appellant’s
Br. 64–65 (quoting ’978 Decision, at 54–55). But the Board
made no such finding. Rather, the Board acknowledged
that CyWee contended as much; the Board did not opine on
whether that contention was correct. ’978 Decision, at 54–
55; ’438 Decision, at 26. In any event, a reference need not
be reasonably pertinent to every problem facing a field to
be analogous prior art, but rather need only be “reasonably
pertinent to one or more of the particular problems to
which the claimed inventions relate.” Donner Tech., LLC
v. Pro Stage Gear, LLC, 979 F.3d 1353, 1361 (Fed. Cir.
2020).
CyWee also argues that Bachmann “does not even ad-
dress . . . the [essential] problem of ‘mapping’ the orienta-
tion and movement of the 3D pointing device to a
movement pattern on a 2D display.” Appellant’s Br. 72.
But, as just stated, a reference need only be reasonably per-
tinent to “one or more of the particular problems to which
the inventions relate,” not to each and every problem facing
the inventors. See Donner, 979 F.3d at 1359, 1361. Even
if mapping is a “part of the relevant problem with which
the inventors were involved,” substantial evidence sup-
ports the Board’s analogous art determination that error
compensation was of “central importance” to the inventors,
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CYWEE GROUP LTD. v. GOOGLE LLC 7
and that Bachmann—which relates to error compensa-
tion—therefore “logically would have commended itself to
the inventor’s attention.” See ’978 Decision, at 59; ’438 De-
cision, at 31. In fact, the Board went so far as to say that
even if mapping was a part of the relevant problem, it was
at most “a relatively minor part” of that problem. See ’978
Decision, at 59; see also ’438 Decision, at 30–31 (explaining
that “mapping is not an essential part of the problem with
which the inventors were involved”).
Furthermore, CyWee identifies a number of purported
differences between Bachmann and the challenged patents
in an attempt to undermine the Board’s analogous art de-
termination. But “a reference can be analogous art with
respect to a patent even if there are significant differences
between the two references.” Donner, 979 F.3d at 1361.
“Indeed, there will frequently be significant differences be-
tween a patent and a reference from a different field of en-
deavor.” Id. What matters is whether these differences
support a determination that the reference is not reasona-
bly pertinent to a problem to which the claimed inventions
relate. Id. We have considered CyWee’s arguments, and
none of them disturbs our determination that substantial
evidence supports the Board’s conclusion that Bachmann
is analogous art with respect to the challenged patents.
CONCLUSION
We have considered CyWee’s remaining arguments but
find them unpersuasive. For the foregoing reasons, we af-
firm the Board’s determination that the challenged claims
would have been obvious.
AFFIRMED