Case: 22-1127 Document: 35 Page: 1 Filed: 02/15/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KEYNETIK, INC.,
Appellant
v.
SAMSUNG ELECTRONICS CO., LTD.,
Appellee
______________________
2022-1127
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Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2018-
00986.
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Decided: February 15, 2023
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EDWARD F. BEHM, Armstrong Teasdale, LLP, Philadel-
phia, PA, argued for appellant. Also represented
by MARK W. HALDERMAN.
CHETAN BANSAL, Paul Hastings LLP, Washington, DC,
argued for appellee. Also represented by STEPHEN BLAKE
KINNAIRD, NAVEEN MODI, JOSEPH PALYS.
______________________
Case: 22-1127 Document: 35 Page: 2 Filed: 02/15/2023
2 KEYNETIK, INC. v. SAMSUNG ELECTRONICS CO., LTD.
Before MOORE, Chief Judge, DYK and PROST, Circuit
Judges.
MOORE, Chief Judge.
KEYnetik, Inc. appeals an inter partes review final
written decision holding claims 4, 7, 15, and 18 of U.S. Pa-
tent No. 8,370,106 would have been obvious. For the fol-
lowing reasons, we affirm.
BACKGROUND
KEYnetik is the assignee of the ’106 patent, which is
directed to detecting motion, “such as movement and rest”
and “orientation towards gravity from a rest position.” ’106
patent, 1:61–67. Motion detection can be implemented in
hand-held devices, such as mobile phones, so the device’s
operations (e.g., answering a call) can be executed based on
a user’s gestures (e.g., the user moving the phone to his
ear). Id. at 6:56–7:30.
Samsung Electronics Co. petitioned for inter partes re-
view of claims 1–20 of the ’106 patent, arguing the claims
would have been obvious. Relevant here, Samsung as-
serted claims 4, 7, 15, and 18 would have been obvious in
view of Linjama, 1 Lehrma, 2 and Tosaki. 3 The Board agreed
and held all claims unpatentable. KEYnetik appealed, and
we affirmed as to claims 1–3, 5–6, 8–14, 16–17, and 19–20.
KEYnetik, Inc. v. Samsung Elecs. Co., 841 F. App’x 219, 220
(Fed. Cir. 2021). As to claims 4, 7, 15, and 18, we vacated
and remanded for the Board to make a finding of reasona-
ble expectation of success. Id. at 228.
On remand, the Board found a skilled artisan would
have had a reasonable expectation of success in combining
the references. The Board based its finding on the
1 U.S. Pat. App. No. 2008/0229255.
2 U.S. Pat. No. 6,703,939.
3 U.S. Pat. No. 6,312,335.
Case: 22-1127 Document: 35 Page: 3 Filed: 02/15/2023
KEYNETIK, INC. v. SAMSUNG ELECTRONICS CO., LTD. 3
testimony of Samsung’s expert, Dr. Abowd. KEYnetik ap-
peals. We have jurisdiction under 28
U.S.C. § 1295(a)(4)(A).
DISCUSSION
Obviousness is a question of law based on underlying
factual findings. In re Giannelli, 739 F.3d 1375, 1378 (Fed.
Cir. 2014) (citing Graham v. John Deere Co., 383 U.S. 1,
17–18 (1966)). Whether there is a reasonable expectation
of success is a question of fact. Teva Pharms. USA v. Cor-
cept Therapeutics, Inc., 18 F.4th 1377, 1380–81 (Fed. Cir.
2021). We review the Board’s legal conclusions de novo and
any underlying findings of fact for substantial evidence. In
re Van Os, 844 F.3d 1359, 1360 (Fed. Cir. 2017). “Substan-
tial evidence requires the reviewing court to ask whether a
reasonable person might find that the evidentiary record
supports the agency’s conclusion.” In re Sullivan, 498 F.3d
1345, 1350 (Fed. Cir. 2007) (citation omitted).
KEYnetik argues substantial evidence does not sup-
port the Board’s finding of a reasonable expectation of suc-
cess because it is based solely on conclusory expert
testimony. We do not agree.
Dr. Abowd’s testimony, while brief, was not conclusory.
Dr. Abowd testified the software modifications needed to
combine the prior art references would be “straightfor-
ward” and “simple” for a skilled artisan. J.A. 812 ¶ 154.
He also described the function those modifications would
need to achieve, stating the gesture detector would be mod-
ified “such that the orientation of mobile terminal 10
[would] only [be] detected when the mobile terminal [was]
substantially stationary.” Id.
KEYnetik criticizes this testimony for not identifying
specific software modifications a skilled artisan would need
to make, how he would make them, and why he would have
expected them to be successful. This criticism ignores that
Dr. Abowd described the specific function the software
Case: 22-1127 Document: 35 Page: 4 Filed: 02/15/2023
4 KEYNETIK, INC. v. SAMSUNG ELECTRONICS CO., LTD.
modifications would need to achieve. Normally, once the
function to be performed by software has been identified,
writing code to achieve that function is within the skill of
the art. Fonar Corp. v. Gen. Elec. Co., 107 F.3d 1543, 1549
(Fed. Cir. 1997). Dr. Abowd’s testimony detailing the mod-
ified function of the code and that implementing such a
modification would be “simple” and “straightforward” was
sufficient to establish a reasonable expectation of success.
KEYnetik has cited no evidence to the contrary. Instead,
before the Board and on appeal, it offers only attorney ar-
gument alleging Dr. Abowd’s testimony is inadequate. But
attorney argument is no substitute for evidence. While Dr.
Abowd’s testimony is brief, in the absence of any contradic-
tory evidence, it constitutes substantial evidence to sup-
port the Board’s finding. We have considered KEYnetik’s
other arguments and find them unpersuasive.
AFFIRMED
COSTS
No costs.