United States Court of Appeals
`for the Federal Circuit
`______________________
`
`CRFD RESEARCH, INC.,
`Appellant
`
`v.
`
`JOSEPH MATAL, PERFORMING THE FUNCTIONS
`AND DUTIES OF THE UNDER SECRETARY OF
`COMMERCE FOR INTELLECTUAL PROPERTY
`AND DIRECTOR, U.S. PATENT AND TRADEMARK
`OFFICE,
`Intervenor
`______________________
`
`2016-2198
`______________________
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2015-
`00055.
`………………………………………………………………..
`
`CRFD RESEARCH, INC.,
`Appellant
`
`v.
`
`DISH NETWORK CORPORATION, DISH DBS
`CORPORATION, DISH NETWORK LLC,
`ECHOSTAR CORPORATION, ECHOSTAR
`TECHNOLOGIES LLC,
`Appellees
`______________________
`
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`2
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` CRFD RESEARCH, INC. V. MATAL
`
`
`2016-2298
`______________________
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2015-
`00627.
`………………………………………………………………..
`
`HULU, LLC, NETFLIX, INC., SPOTIFY USA INC.,
`Appellants
`
`v.
`
`CRFD RESEARCH, INC.,
`Appellee
`______________________
`
`2016-2437
`______________________
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2015-
`00259.
`
`______________________
`
`Decided: December 5, 2017
`______________________
`
`
`TAREK N. FAHMI, Ascenda Law Group, PC, San Jose,
`CA, argued for appellant in 2016-2198, 2016-2298 and for
`appellee in 2016-2437.
`
`
`MARY L. KELLY, Office of the Solicitor, United States
`Patent and Trademark Office, Alexandria, VA, argued for
`intervenor in 2016-2198. Also represented by NATHAN K.
`KELLEY, MICHAEL SUMNER FORMAN, THOMAS W. KRAUSE,
`SCOTT WEIDENFELLER.
`
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`
`ELIOT DAMON WILLIAMS, Baker Botts LLP, Palo Alto,
`CA, argued for appellees in 2016-2298. Also represented
`by GEORGE HOPKINS GUY, III.
`
`HARPER BATTS, Baker Botts LLP, Palo Alto, CA, ar-
`gued for appellant Hulu, LLC, in 2016-2437. Also repre-
`sented by ELIOT DAMON WILLIAMS; MICHAEL HAWES,
`Houston, TX.
`
`JOHN F. WARD, Kelley Drye & Warren, LLP, New
`York, NY, argued for appellants Netflix, Inc., Spotify USA
`Inc.,
`in 2016-2437.
` Also represented by DAVID
`LINDENBAUM, MICHAEL J. ZINNA.
`
`
`______________________
`
`Before NEWMAN, MAYER, and O’MALLEY, Circuit Judges.
`O’MALLEY, Circuit Judge.
`Today we decide three appeals in companion cases
`from final written decisions of the United States Patent
`and Trademark Office (“PTO”) Patent Trial and Appeal
`Board’s (“Board”) inter partes reviews (“IPRs”) of U.S.
`Patent No. 7,191,233 (“the ’233 patent”), owned by CRFD
`Research, Inc. (“CRFD”). Iron Dome LLC v. CRFD Re-
`search, Inc., No. IPR2015-00055, 2016 Pat. App. LEXIS
`6855 (P.T.A.B. Apr. 22, 2016) (hereinafter “Iron Dome
`Final Written Decision,” Appeal No. 16-2198); DISH
`Network Corp. v. CRFD Research, Inc., No. IPR2015-
`00627, 2016 Pat. App. LEXIS 7567 (P.T.A.B. June 1,
`2016) (hereinafter “DISH Final Written Decision,” Appeal
`No. 16-2298); Hulu, LLC v. CRFD Research, Inc., No.
`IPR2015-00259, 2016 Pat. App. LEXIS 4340 (P.T.A.B.
`June 1, 2016) (hereinafter “Hulu Final Written Decision,”
`Appeal No. 16-2437). For the reasons stated below, we
`affirm the Iron Dome and DISH Final Written Decisions,
`
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` CRFD RESEARCH, INC. V. MATAL
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`but we reverse the Board’s determination on obviousness
`in the Hulu Final Written Decision.
`I. BACKGROUND
`A. The ’233 Patent
`The ’233 patent describes methods and systems for
`“user-directed transfer of an on-going software-based
`session from one device to another device.” ’233 patent,
`col. 1, ll. 10–11. These methods and systems operate to
`allow the user to begin a session on one communication-
`enabled device, such as a cellular telephone, wireless
`personal digital assistant, laptop computer, or desktop
`computer, and then to transfer the session to another
`device. Id. col. 1, ll. 8–11; see id. col. 1, ll. 15–52; see also
`id. col. 2, ll. 3–20; id. col. 3, ll. 6–10.
`The ’233 specification explains that, “[i]n conventional
`systems, the user would have to discontinue the current
`session on the first device and reinitiate a new session on
`the second device.” Id. col. 1, ll. 59–62. But the session
`transfer described in the ’233 patent “provides the capa-
`bility to initiate a transfer of an on-going session from a
`first device to a second device while maintaining the
`session and its context.” Id. col. 3, ll. 7–10.
`The ’233 patent describes a method of session transfer
`in which: (1) a first device sends a “redirect or transfer
`command” to a session transfer module; (2) a session
`server begins intercepting messages intended for the first
`device; (3) the first device transmits a “transaction or
`session history” to the session server; (4) the session
`server retrieves the previously stored “device profile” of a
`second device to which the session will be redirected,
`converts the stored messages of the session history into a
`data format compatible and/or modality compatible with
`the second device, and converts the session state to a
`state compatible with the second device; and (5) when the
`user activates the second device, the session server “push-
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`5
`
`es the converted session to the redirected device over the
`network 100 as a normal session with the converted
`transaction log.” Id. col. 7, l. 46–col. 8, l. 35.
`Claim 1 is illustrative of the independent and depend-
`ent claims at issue in these appeals:1
`1. A method for redirecting an on-going, software
`based session comprising:
`conducting a session with a first device;
`specifying a second device;
`discontinuing said session on said first de-
`vice; and
`transmitting a session history of said first
`device from said first device to a session
`transfer module after said session is dis-
`continued on said first device; and
`resuming said session on said second de-
`vice with said session history.
`Id. col. 9, ll. 30–39.
`
`
`1 CRFD appealed the Iron Dome Final Written De-
`cision as to the Board’s finding of anticipation of claim 1
`and obviousness of claims 4–6 and 8–11 of the ’233 patent.
`See Appeal No. 16-2198. CRFD also appealed the DISH
`Final Written Decision as to the Board’s finding of antici-
`pation of claims 1, 4, 23, and 25 of the ’233 patent, and
`obviousness of claims 4 and 25 of the ’233 patent. See
`Appeal No. 16-2298. Hulu appealed the Hulu Final
`Written Decision as to the Board’s finding of no anticipa-
`tion of claims 1–3, 23, and 24 of the ’233 patent, and
`nonobviousness of claims 1–6, 8–11, 13–15, 17–20, 23–25,
`29–31, 34–36, and 38–41 of the ’233 patent. See Appeal
`No. 16-2437.
`
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`B. Relevant Prior Art
`The Board reviewed three prior art references rele-
`vant to the issues raised in these appeals: (1) Thomas
`Phan et al., “A New TWIST on Mobile Computing: Two-
`Way Interactive Session Transfer” in the Proceedings of
`the Second IEEE Workshop on Internet Applications
`(WIAPP 2001) (“Phan San Jose”); (2) Thomas Phan et al.,
`“Handoff of Application Sessions Across Time and Space”
`in volume 5 of the IEEE International Conference on
`Communications (ICC 2001) (“Phan Helsinki”); and
`(3) U.S. Patent No. 6,963,901, filed July 24, 2000, and
`issued November 8, 2005 (“Bates”).2
`
`
`2
`In the IPRs leading to the DISH and Hulu Final
`Written Decisions, the Board also instituted review on
`various grounds related to two other prior art references:
`(1) Mun Choon Chan & Thomas Y. C. Woo, Next-
`Generation Wireless Data Services: Architecture and
`Experience, IEEE Pers. Comm., Feb. 1999, 20 (“Chan”);
`and (2) Bo Zou, Mobile ID Protocol: A Badge-Activated
`Application Level Handoff of a Multimedia Streaming to
`Support User Mobility (2000) (M.S. thesis, University of
`Illinois at Urbana-Champaign) (“Zou”). In IPR2015-
`00627, the Board instituted review of the ’233 patent
`under 35 U.S.C. § 103(a) on the combination of Bates and
`Chan. DISH Final Written Decision, at *7. In IPR2015-
`00259, the Board instituted review of the ’233 patent
`under 35 U.S.C. § 103(a) on the combinations of Bates and
`Chan, Bates and Zou, and Bates, Zou, and Chan. Hulu
`Final Written Decision, at *6. As discussed below in
`sections II.B and II.C, the parties do not dispute that
`petitioners in these actions offered Bates as the only
`reference that teaches and/or suggests the transmitting
`session history limitation at issue in the relevant portions
`of those proceedings.
`
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`7
`
`1. Phan San Jose
`The Board examined Phan San Jose as part of the
`Iron Dome and DISH Final Written Decisions. Phan San
`Jose describes the “Interactive Mobile Application Sup-
`port for Heterogeneous Clients (iMASH) research project.”
`iMASH allows hospital physicians and staff to “seamless-
`ly move an application’s session from one machine to
`another machine,” such as a desktop or laptop computer,
`using the hospital’s “network as a conduit.” Using
`iMASH, a physician may begin a session on a first device
`and later resume that session on a different device using
`the session data from the first device.
`As part of its discussion of the iMASH research pro-
`ject, Phan San Jose discloses a two-way interactive ses-
`sion transfer (“TWIST”). TWIST places middleware
`servers (“MWSs”) between client devices and an applica-
`tion server. Session state data on a first device is stored
`on the MWS and then transferred to another client upon
`session handoff.
`Phan San Jose also describes how the iMASH system
`could be used with a “Teaching File” Java applet that
`displays medical images and associated information to
`allow users to create and modify instructional “teaching
`files.” In responding to a user request, the application
`server sends an image file from storage to the MWS. The
`MWS then performs a format conversion on the image,
`and the requesting client device then receives this image.
`Phan San Jose describes two methods for session
`handoff: a “pull” mode and a “push” mode. In the “pull”
`mode, so named because the target machine retrieves the
`session state from the MWS, the session handoff proceeds
`as follows:
`When the user wishes to perform a session
`handoff, he must first decide how the handoff
`shall be conducted with respect to the recipient. If
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`the user selects a “Suspend” operation [at the first
`client device in the “pull” mode], his session shall
`be saved back to the MWS, allowing the applica-
`tion to terminate, and at a later time the session
`can be reinstantiated by the Teaching File appli-
`cation running on the target machine.
`J.A. 349 (Appeal No. 16-2198); J.A. 1333 (Appeal No. 16-
`2298). In the “pull” mode, the second device is specified
`after the session is terminated on the first device. But in
`the “push” mode, the user selects the target second device
`to which the transfer will be made before the session on
`the first device is terminated. Id. When the handoff
`occurs in the “push” mode, the MWS contacts a daemon
`running on the target device to immediately launch the
`Teaching File applet; this action automatically retrieves
`the session state data from the first device. Id. The
`applet on the first client terminates only after the session
`state is fully reinstantiated on the second machine. Id.
`2. Phan Helsinki
`The Board examined Phan Helsinki in the course of
`the Iron Dome and DISH Final Written Decisions. Phan
`Helsinki elaborates on the architecture and operation of
`the iMASH research project described in Phan San Jose.
`J.A. 359–64 (Appeal No. 16-2198); J.A. 1343–48 (Appeal
`No. 16-2298). Phan Helsinki explains that this system
`employs MWSs “strategically placed between the applica-
`tion servers and the clients.” J.A. 359 (Appeal No. 16-
`2198); J.A. 1343 (Appeal No. 16-2298). The MWSs, rather
`than the original application servers, act as the data
`sources for the various clients and support session
`handoffs. Id. “When a user moves an on-going applica-
`tion session from one device to another, middleware
`servers act as a ‘home’ for the application state (including
`active connections, cached data, etc.) to facilitate migra-
`tion between devices.” J.A. 361 (Appeal No. 16-2198); J.A.
`1345 (Appeal No. 16-2298).
`
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`
`Phan Helsinki also describes the “Middleware-Aware
`Remote Code” (“MARC”) on the client device that facili-
`tates “session saving and restoration,” and explains how a
`session is transferred using a web browser that has been
`“outfitted” with MARC. J.A. 361–62 (Appeal No. 16-
`2198); J.A. 1345–46 (Appeal No. 16-2298). First, a user
`starts the client application by providing a user ID. The
`MARC within the browser then contacts the MWS and
`begins a new session using this user ID. If a previous
`session state exists, it is retrieved from the MWS and is
`incorporated into the browser before the user’s current
`session begins. Id.
`
`3. Bates
`Bates discloses a system and method for “shar-
`ing . . . browser information between at least two browser
`applications” in which a web browsing session is trans-
`ferred from a first computer to a second computer via one
`or more servers. Bates, col. 1, ll. 63–66; id. col. 3, ll. 4–7;
`id. col. 9, ll. 24–30; id. col. 10, l. 51–col. 11, l. 8. The
`“browser information includes information generated
`during a browsing session, i.e., a period of time when the
`browser 240 is executing on a client computer 106 and a
`network connection exists between the client 106 and the
`network 104 allowing a user to traverse network address-
`es corresponding to the servers 108,” and the information
`“may be limited to the information generated during a
`particular browsing session.” Id. col. 4, ll. 61–67; id. col.
`6, ll. 11–13; id. col. 7, ll. 22–24.
`Bates discloses a step-by-step session transfer process
`in which a user first conducts a web browsing session on a
`first client computer. Id. col. 10, ll. 58–61. Next, “[a] user
`may input to the field 302 an e-mail address for a com-
`puter (e.g., a remote client computer 106) to which the
`browser information contained in the sending computer’s
`buffer 242 will be sent.” Id. col. 5, ll. 52–56. When the
`user wishes to switch computers, “the user may be re-
`
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` CRFD RESEARCH, INC. V. MATAL
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`quired to terminate a browsing session. In such an event,
`the necessary browser information may be collected and
`transmitted to a remote computer containing another
`browser program” through the use of various servers and
`networks. Id. col. 10, ll. 61–65. “The browser information
`is then used to reconfigure the browser program of the
`remote computer and restore the user to where he or she
`left off during the terminated browsing session.” Id. col.
`10, l. 65–col. 11, l. 1. “In effect, the present invention
`preserves the current status of a browsing session to be
`resumed at another location.” Id. col. 11, ll. 6–8.
`Bates also describes various “share events,” which are
`events “adapted to initiate transmission of the browser
`information from the local client computer to the remote
`client computer.” Id. col. 9, ll. 4–7. Share events occur in
`connection with a user interface, where the local computer
`is configured to share browser information with a remote
`computer. Id. col. 8, ll. 59–66. Figure 5 of Bates depicts
`five such events: (1) upon user request (i.e., the browser
`information is transmitted immediately in response to a
`user request); (2) at shutdown (where the browser infor-
`mation is transmitted when the client computer is shut-
`down);
`(3) at an
`idle period
`(where the browser
`information is transmitted when the client computer is
`idle—e.g., when it enters a standby or hibernation mode);
`(4) periodically (where the browser information is trans-
`mitted at periodic time intervals); and (5) upon a prede-
`termined action (in which the browser information is
`transmitted upon the occurrence of an action performed
`by the user, which action is not solely directed to sending
`the browser information). Id. col. 7, l. 56–col. 8, l. 23; id.
`Fig. 5. When a “share event” occurs, the first client
`computer transmits the browser information to the second
`client computer. Id. col. 9, ll. 38–49.
`
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`11
`
`II. DISCUSSION
`We review the Board’s factual findings for substantial
`evidence and its legal conclusions de novo. In re Gartside,
`203 F.3d 1305, 1315–16 (Fed. Cir. 2000). “Substantial
`evidence is something less than the weight of the evidence
`but more than a mere scintilla of evidence.” In re Mouttet,
`686 F.3d 1322, 1331 (Fed. Cir. 2012) (citing Gartside, 203
`F.3d at 1312). It is “such relevant evidence as a reasona-
`ble mind might accept as adequate to support a conclu-
`sion.” In re Applied Materials, Inc., 692 F.3d 1289, 1294
`(Fed. Cir. 2012) (quoting Consol. Edison Co. of N.Y. v.
`NLRB, 305 U.S. 197, 229 (1938)). We have jurisdiction
`over these appeals under 28 U.S.C. § 1295(a)(4).
`In its appeals of the Iron Dome and DISH Final Writ-
`ten Decisions, CRFD challenges the Board’s determina-
`tions that certain claims of the
`’233 patent are
`unpatentable as anticipated or obvious over the Phan
`references. In appealing the Hulu Final Written Decision,
`Hulu, LLC, Netflix, Inc., and Spotify USA Inc. (collective-
`ly, “Hulu”) challenge the Board’s conclusion that various
`claims of the ’233 patent are not unpatentable as antici-
`pated or obvious based on disclosures in the Bates refer-
`ence. We review each appeal in turn.
`A. Iron Dome Final Written Decision
`(Appeal No. 16-2198)
`As noted above, CRFD challenges the Iron Dome Fi-
`nal Written Decision in two ways: (1) it contends that
`claim 1 of the ’233 patent is not anticipated by Phan San
`Jose; and (2) it argues that claims 4–6 and 8–11 would not
`have been obvious over Phan San Jose in combination
`with Phan Helsinki. For the reasons stated below, we
`reject both of these challenges and affirm the Board’s
`decision in this appeal.
`
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`1. Procedural History
`Iron Dome LLC filed a petition seeking inter partes
`review of claims 1–6, 8–11, 13–15, 17, 18, 20, and 34 of
`the ’233 patent. Iron Dome Final Written Decision, at *1.
`The Board instituted review on two proposed grounds:
`(1) claim 1 as anticipated by Phan San Jose; and
`(2) claims 4–6 and 8–11 as obvious over Phan San Jose in
`combination with Phan Helsinki. Id. at *7.
`In its final written decision, the Board concluded first
`that some, but not all, steps described in claim 1 of the
`’233 patent must be performed in a particular order. Id.
`at *9–13. The Board found that claim 1 states explicitly
`that the “transmitting a session history” step of claim 1
`must follow the “discontinuing [a] session” step, and that,
`logically, the “conducting a session with a first device”
`step must take place before the “discontinuing said ses-
`sion on said first device” step. Id. at *11. But the Board
`concluded that “[t]here is nothing in the language of the
`claim, however, expressly requiring ‘specifying a second
`device’ to take place before ‘discontinuing said session on
`said first device’ or requiring such an order as a matter of
`logic or grammar.” Id. Although the ’233 patent includes
`two examples in which a user specifies a second device
`before discontinuing a session, the Board noted that the
`’233 specification indicates explicitly that, “although the
`method of the present invention has been described by
`examples, the steps of the method may be performed in a
`different order than illustrated or simultaneously.” Id. at
`*12 (citing ’233 patent, col. 9, ll. 22–25). The Board thus
`concluded that claim 1 does not require the “specifying”
`step to take place before the “discontinuing” step. Id. at
`*13.
`The Board then found that Phan San Jose anticipates
`claim 1. Id. at *13–22. Although the Board agreed with
`CRFD that Phan San Jose’s “push” mode failed to teach
`the method recited in that claim, the Board found that the
`
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`13
`
`“pull” mode of Phan San Jose discloses every limitation of
`claim 1, including the “specifying a second device” limita-
`tion relevant to this appeal. Id. at *16–17. The Board
`concluded that Phan San Jose teaches the specification of
`a second device even though, in the “pull” mode, the user
`does not identify a second device before suspending the
`session. Instead, “[t]he specification of the second device
`may take place at a later time, such as when the user
`chooses to resume the session on a different device.” Id.
`at *18. As the “specifying” step need not take place before
`the “discontinuing” step in claim 1 under the Board’s
`construction, the Board found that Phan San Jose dis-
`closed a scenario in which device specification could occur
`after the user selects the “Suspend” operation, thereby
`discontinuing the session and causing the transmission of
`the session history to the MWS.
`The Board also found that Phan San Jose teaches
`specifying a second device in the “pull” mode when the
`user takes action on the second device to resume the
`session. Id. at *20. According to the Board, claim 1 “does
`not specify who or what does the specifying, or to whom or
`what the second device is specified,” as the claim only
`requires that the second device be specified. Id.
`The Board then explained that, even if the second de-
`vice must be specified to the Phan San Jose MWS, that
`MWS “must receive enough information from the second
`device to be able to distinguish the chosen second device
`from other potential devices, even if only by virtue of the
`second device’s association with a user account; otherwise,
`the MWS would not be able to transmit the session histo-
`ry to the second device.” Id. at *21. Given these disclo-
`sures, the Board found that Phan San Jose discloses the
`“specifying” step of claim 1 either through user selection
`of a second device to resume the session or through the
`second device’s communication to the MWS to transmit
`the session history from the first device.
`
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`The Board also determined that claims 4–6 and 8–11
`would have been obvious over Phan San Jose and Phan
`Helsinki. Id. at *22–27. The Board rejected CRFD’s
`contention that Phan Helsinki’s description of the “pull”
`mode, also disclosed in Phan San Jose, fails to teach or
`render obvious the “specifying a second device” step of
`claim 1. The Board noted its earlier determination that
`Phan San Jose alone discloses the “specifying a second
`device” step, and concluded that CRFD’s arguments as to
`claims dependent on claim 1 were unpersuasive for this
`reason. Id. at *26–27.
`CRFD appealed. Iron Dome subsequently withdrew
`from the appeal, and the Director exercised her right to
`intervene under 35 U.S.C. § 143.
`2. Anticipation by Phan San Jose
`A patent is invalid for anticipation under 35 U.S.C.
`§ 102 if a single prior art reference discloses all limita-
`tions of the claimed invention. Schering Corp. v. Geneva
`Pharm., 339 F.3d 1373, 1377 (Fed. Cir. 2003). “Anticipa-
`tion is a question of fact, and decisions from the Board on
`factual matters are reviewed for substantial evidence.”
`REG Synthetic Fuels, LLC v. Neste Oil Oyj, 841 F.3d 954,
`958 (Fed. Cir. 2016) (citing Eli Lilly & Co. v. Bd. of Re-
`gents of Univ. of Wash., 334 F.3d 1264, 1267 (Fed. Cir.
`2003)). Anticipation is established when “one skilled in
`the art would reasonably understand or infer from the
`prior art reference’s teaching that every claim [limitation]
`was disclosed in that single reference.” Akamai Techs.,
`Inc. v. Cable & Wireless Internet Servs., Inc., 344 F.3d
`1186, 1192–93 (Fed. Cir. 2003) (quoting Dayco Prods., Inc.
`v. Total Containment, Inc., 329 F.3d 1358, 1368 (Fed. Cir.
`2003)).
`On appeal, CRFD does not challenge the Board’s de-
`termination that nothing in claim 1 requires the step of
`specifying a second device occurs before the first session is
`discontinued, nor does it challenge any of the Board’s
`
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`other claim construction determinations. And, CRFD
`does not dispute that Phan San Jose’s “pull” mode teaches
`that a physician can begin a session on a first device and
`then discontinue that session by suspending it, thereby
`causing the session history to be saved onto the MWS for
`continuation of the session at a later time.
`Instead, CRFD contends that the Board erred in de-
`termining that Phan San Jose anticipates claim 1 of the
`’233 patent as, in its view, Phan San Jose’s “pull” mode
`does not teach “specifying a second device.” CRFD argues
`that nothing in Phan San Jose describes “specifying” as
`part of a second device’s retrieval of session history from
`the MWS, and that, to anticipate, Phan San Jose must
`have provided more detail about the reinstantiation
`process. But claim 1 only requires “specifying a second
`device.” As the Board correctly noted, this is a broad
`limitation; it does not restrict specifying to a particular
`user or a particular device. Iron Dome Final Written
`Decision, at *20. Indeed, CRFD admitted at the oral
`hearing before the Board that either a user or another
`entity could specify the second step. Id. (citing J.A. 286 at
`ll. 14–22). And, according to the Board’s uncontested
`claim construction, the specifying step need not occur
`before the discontinuation of the first session, meaning
`that a user can specify a second device, or a second device
`can specify itself, after the first session has been discon-
`tinued and the session history has been transferred to the
`MWS.
`The Board explained that “the MWS in Phan San Jose
`must receive enough information from the second device
`to be able to distinguish the chosen second device from
`other potential devices, even if only by virtue of the sec-
`ond device’s association with a user account; otherwise,
`the MWS would not be able to transmit the session histo-
`ry to the second device.” Id. at *21. As the Board found,
`Phan San Jose teaches that the user may select the
`second device on which a session will be resumed and
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`take action on that device to resume the session; such
`action causes the second device to communicate with the
`MWS to retrieve the session history. Id. at *20.
`CRFD has not explained why the Board’s finding—
`that claim 1 does not prohibit a user from specifying a
`second device by taking action on that second device to
`resume the session—was erroneous. CRFD contends that
`nothing in Phan San Jose describes a user log-on action,
`but CRFD fails to explain how, under its theory, the
`session history could be sent to the second device without
`a user or a device instructing the MWS on where to send
`the data—thereby “specifying” the device. The fundamen-
`tal flaw in CRFD’s theory is that it fails to acknowledge
`that, in order for the session history to be transmitted to
`the second device, the MWS must know the identity of the
`second device. CRFD’s arguments that Phan San Jose
`fails to provide the precise details of this identification
`process are unavailing, because the identification of the
`second device (or, in claim 1’s parlance, the “specifying” of
`such a device) is required for Phan San Jose’s operation.
`CRFD also challenges the Board’s anticipation conclu-
`sion as to the “transmitting” limitation. The Board found
`that CRFD admitted that Phan San Jose discloses the
`“transmitting” step of claim 1 at the oral hearing. See id.
`at *17. CRFD’s attorney made the following statement at
`the oral hearing before the Board:
`JUDGE ARBES: Counsel, do you agree that the
`pull mode of Phan San Jose discloses transmitting
`the session history after the session is discontin-
`ued limitation?
`MR. FAHMI: I’m sorry, which mode, Your Honor?
`JUDGE ARBES: The pull mode.
`MR. FAHMI: The pull mode teaches transfer after
`the session is discontinued, yes. In fact, it has to
`because in the pull mode the application on the
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`first client is allowed to terminate after indicating
`that they wish to suspend the session.
`J.A. 283 at ll. 3–11 (emphasis added); see also Iron Dome
`Final Written Decision, at *17 (citing J.A. 283 at ll. 3–9).
`CRFD argues that this statement does not concede
`that Phan San Jose’s “pull” mode teaches transmitting a
`session history after the session is discontinued. Instead,
`it reflects CRFD’s agreement that, in Phan San Jose,
`transfer of a session to a second device occurs after a
`session is terminated on the first device. CRFD points to
`Phan San Jose in support of this position, arguing that, in
`that reference, the session data must be saved on the
`MWS before the application running on the first device
`can terminate: “If the user selects a ‘Suspend’ operation,
`his session shall be saved back to the MWS, allowing the
`application to terminate.” J.A. 349. But CRFD’s citation
`is incomplete; Phan San Jose explains that, after the
`session is saved back to the MWS, which allows the
`application to terminate, “at a later time the session can
`be reinstantiated.” Id. The Board cites the entire state-
`ment in its decision, and this statement is not incon-
`sistent with the Board’s conclusion that Phan San Jose
`discloses this limitation. CRFD has not shown that the
`Board erred in this finding.
`Because substantial evidence supports the Board’s
`conclusion that Phan San Jose teaches all steps of claim 1
`of the ’233 patent, we affirm the Board’s determination
`that Phan San Jose anticipates this claim.
`3. Obviousness Over Phan San Jose
` and Phan Helsinki
`Obviousness is a question of law based on subsidiary
`findings of fact. Intelligent Bio-Sys., Inc. v. Illumina
`Cambridge Ltd., 821 F.3d 1359, 1366 (Fed. Cir. 2016). An
`obviousness determination requires finding both “that a
`skilled artisan would have been motivated to combine the
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`teachings of the prior art references to achieve the
`claimed invention, and that the skilled artisan would
`have had a reasonable expectation of success in doing so.”
`Id. at 1367–68 (quoting Kinetic Concepts, Inc. v. Smith &
`Nephew, Inc., 688 F.3d 1342, 1360 (Fed. Cir. 2012)). We
`uphold the Board’s factual findings unless they are not
`supported by substantial evidence, while we review the
`Board’s legal conclusions de novo. Dynamic Drinkware,
`LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir.
`2015).
`CRFD has not raised nonobviousness arguments sep-
`arate from the anticipation arguments we have rejected.
`CRFD contends that the “pull” mode taught in Phan San
`Jose and