Case: 21-2357 Document: 61 Page: 1 Filed: 06/05/2023
`
`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`MEDTRONIC, INC., MEDTRONIC VASCULAR,
`INC.,
`Appellants
`
`v.
`
`TELEFLEX INNOVATIONS S.A.R.L.,
`Appellee
`______________________
`
`2021-2357, 2021-2360, 2021-2364
`______________________
`
`Appeals from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in Nos. IPR2020-
`00127, IPR2020-00130, IPR2020-00136.
`______________________
`
`Decided: June 5, 2023
`______________________
`
`BRITTANY BLUEITT AMADI, Wilmer Cutler Pickering
`Hale and Dorr LLP, Washington, DC, argued for appel-
`lants. Also represented by JENNIFER L GRABER; TASHA JOY
`BAHAL, MARK CHRISTOPHER FLEMING, HANNAH ELISE GEL-
`BORT, MADELEINE C. LAUPHEIMER, Boston, MA.
`
` SANJIV P. LAUD, McCurdy LLC, Minneapolis, MN, ar-
`gued for appellee. Also represented by PETER M. KOHL-
`HEPP, TARA CATHERINE NORGARD, J. DEREK VANDENBURGH,
`JOSEPH W. WINKELS, Carlson, Caspers, Vandenburgh &
`Lindquist PA, Minneapolis, MN.
`
`

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`MEDTRONIC, INC. v. TELEFLEX INNOVATIONS S.A.R.L.
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` ______________________
`
`Before MOORE, Chief Judge, LOURIE and DYK, Circuit
`Judges.
`
`MOORE, Chief Judge.
`Medtronic, Inc. and Medtronic Vascular, Inc. (collec-
`tively, Medtronic) appeal inter partes review decisions of
`the Patent Trial and Appeal Board holding Medtronic
`failed to establish the unpatentability of various claims of
`U.S. Patent Nos. 8,048,032; RE45,380; and RE45,776 (the
`patents-in-suit). Medtronic also appeals the Board’s deci-
`sions granting Teleflex Innovation S.à.r.l’s (Teleflex) mo-
`tions to amend certain claims of the ’032 and ’380 patents.
`For the following reasons, we affirm.
`BACKGROUND
`Coronary artery disease, in which plaque buildup nar-
`rows the lumen (i.e., the tubular cavity) of a patient’s ar-
`tery and obstructs blood flow, affects millions of Americans.
`Cardiologists refer to this narrowing of a patient’s artery
`as stenosis. See ’032 patent at 1:25–26.1 For decades, car-
`diologists have used devices known as guide catheters to
`deliver interventional cardiology devices (e.g., guidewires,
`stents, balloon catheters) designed to alleviate stenoses.
`Id. at 1:15–29. Treatment typically involves inserting the
`guide catheter into the patient’s femoral or radial artery
`and guiding the catheter to the patient’s aorta until the dis-
`tal tip of the catheter reaches the ostium (i.e., opening) of
`the coronary artery. Id. at 1:30–36. Interventional devices
`can then be inserted into the proximal opening of the
`
`
`1 The patents-in-suit share a common specification.
`For simplicity, all citations to the written description will
`refer to the ’032 patent.
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`catheter, advanced through the lumen of the catheter using
`a guidewire, and delivered past the stenosis.2 Id.
`These procedures involved certain challenges and
`risks. For example, “[c]rossing tough lesions can create
`enough backward force to dislodge the guide catheter from
`the ostium of the artery being treated,” disrupting the pro-
`cedure and potentially harming the patient. Id. at 1:36–
`40, 4:40–46. This problem drove practitioners to seek new
`catheter designs and methods with increased “back-up sup-
`port” that would prevent backward dislodgment of the
`catheter. Id. at 1:36–44. For example, one method dis-
`closed in a prior art journal article (Takahashi) involves a
`“mother-and-child” technique in which a standard 5
`French guide catheter is inserted into a 6 French guide
`catheter and advanced until its distal tip is deep within the
`patient’s ostium, a technique known as deep seating.3 Id.
`at 2:17–29; see J.A. 2172–76 (Takahashi). However, deep
`seating using standard guide catheters in the mother-and-
`child technique also involved risks, including that the stiff
`distal end of the inner catheter could damage the coronary
`artery when deeply embedded. ’032 patent at 2:28–44.
`The patents-in-suit, owned by Teleflex, sought to ad-
`dress these problems by using a coaxial extension catheter
`insertable into standard guide catheters that offered in-
`creased back-up support and the ability to deep seat with-
`out the attendant drawbacks of traditional mother-and-
`child systems. See id. at 2:53–3:4, 4:33–5:3. In a preferred
`embodiment, the disclosed extension catheter includes
`three parts: (1) a proximal substantially rigid portion 20
`
`2 The proximal and distal ends of a catheter respec-
`tively refer to the ends nearest to and farthest from the
`treating physician.
`3 One French is the standard unit of measurement
`for catheter diameters. One French equals one third of a
`millimeter. See J.A. 1886 ¶ 46.
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`(yellow); (2) a reinforced portion 18 (blue); and (3) a distal
`flexible tip 16 (pink). See id. at 6:9–54; see also id. at Fig.
`4 (reproduced below as annotated by Medtronic’s expert).
`The proximal end of the guide extension catheter includes
`a “side opening,” i.e., a partially cylindrical region (red cir-
`cle), which permits the extension catheter to receive and
`deliver interventional cardiological devices while it is
`within the guide catheter. Id. at 9:44–63. As depicted in
`Figure 4, the side opening may include multiple inclined
`regions separated by a non-inclined region, a structure re-
`ferred to herein as a double-inclined side opening. The pa-
`tents-in-suit also disclose and claim embodiments in which
`the diameter of the extension catheter is no more than one
`French smaller than the diameter of the guide catheter,
`thereby preserving maximal volume within the coaxial lu-
`men for receiving interventional devices. See id. at 3:5–20.
`
`
`In 2009, Teleflex introduced a series of guide extension
`catheters embodying claims of the patents-in-suit and mar-
`keted as the GuideLiner V1, GuideLiner V2, and Guide-
`Liner V3 (collectively, the GuideLiner). Those products
`enjoyed undisputed commercial success and industry
`praise and were eventually followed by multiple, competing
`guide extension catheters, including Medtronic’s Telescope
`product, introduced in 2019.
`PROCEDURAL HISTORY
`In November of 2019, Medtronic petitioned for inter
`partes review of the patents-in-suit, alleging the challenged
`claims would have been obvious over U.S. Patent No.
`5,439,445 (Kontos), which discloses a support catheter for
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`delivering angioplasty balloons, in view of various combi-
`nations of secondary references. The secondary references
`included: (1) U.S. Patent Application Publication No.
`2004/0010280 (Adams), disclosing a catheter assembly
`with a distal side opening for removing embolic debris
`while occluding blood flow during treatment; (2) U.S. Pa-
`tent No. 7,604,612 (Ressemann), disclosing an evacuation
`sheath assembly with a distal side opening used to remove
`embolic material while occluding blood flow using sealing
`balloons; (3) U.S. Patent Application Publication No.
`2005/0015073 (Kataishi), disclosing a suction catheter de-
`signed to remove thrombi in blood vessels; and (4)
`Takahashi.
`The Board instituted each petition and issued final
`written decisions holding some claims unpatentable and
`others not. See Medtronic, Inc. v. Teleflex Innovations
`S.à.r.l., No. IPR2020-00127, 2021 WL 2518685 (P.T.A.B.
`June 7, 2021) (’032 Decision); Medtronic, Inc. v. Teleflex In-
`novations S.à.r.l., No. IPR2020-00130, 2021 WL 2524006
`(P.T.A.B. June 17, 2021) (’380 Decision); Medtronic, Inc. v.
`Teleflex Innovations S.à.r.l., No. IPR2020-00136, 2021 WL
`2524191 (P.T.A.B. June 17, 2021) (’776 Decision). In addi-
`tion, the Board granted Teleflex’s contingent motions to
`amend certain claims of the ’032 and ’380 patents and de-
`termined the amended claims were not unpatentable.
`The parties organize the claims determined not un-
`patentable into four (overlapping) sets, a categorization we
`adopt for our analysis. The Side Opening Claims are
`claims 3, 4, 9, 13, and 18 of the ’032 patent; claims 3, 4, 9,
`14, and 19 of the ’380 patent; and claims 25–27, 29, 33, 35–
`37, 39, 41–49, and 52 of the ’776 patent. The One-French
`Claims are claims 8 and 17 of the ’032 patent; claims 8 and
`18 of the ’380 patent; and claims 30–32 and 53–56 of the
`’776 patent. The Double-Incline Claims are claims 52–56
`of the ’776 patent. Lastly, the Substitute Claims are claims
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`23–25 of the ’032 patent and claims 43 and 44 of the ’380
`patent.4
`
`DISCUSSION
`Medtronic appeals the Board’s determination that
`Medtronic failed to prove the Side Opening, One-French,
`and Double-Incline Claims would have been obvious. It
`also challenges the Board’s decision granting Teleflex’s mo-
`tion to introduce substitute claims. We address each issue
`in turn.
`
`I
`We first address Medtronic’s arguments that the Board
`erred in determining the Side Opening, Double-Incline,
`and One-French Claims are not unpatentable as obvious.5
`Obviousness is a question of law based on underlying facts.
`WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1326 (Fed. Cir.
`2016). We review the Board’s ultimate determination of
`
`
`4 Though delineated separately, the One-French and
`Double-Incline Claims of the ’776 patent, as well as the
`Substitute Claims, also recite a side opening.
`5 Teleflex contends Medtronic forfeited various argu-
`ments by failing to raise them in its Requests for Director
`Rehearing made pursuant to 37 C.F.R. § 42.71(d), which
`requires the petitioning party to “specifically identify all
`matters the party believes the Board misapprehended or
`overlooked.” Specifically, Teleflex argues Medtronic’s al-
`leged failure to comply with § 42.71(d), while not a jurisdic-
`tional bar to our review, grants us discretion to find
`unraised issues forfeited. We need not resolve this ques-
`tion. Even if Medtronic forfeited these arguments, an issue
`we do not decide, we have the discretion to reach them on
`appeal. Ciena Corp. v. Oyster Optics, LLC, 958 F.3d 1157,
`1161 (Fed. Cir. 2020) (“[I]t is a discretionary decision to for-
`give waivers of non-jurisdictional challenges . . . .”).
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`obviousness de novo and its underlying findings of fact for
`substantial evidence. Id.
`A. SIDE OPENING CLAIMS
`Claim 3 of the ’032 patent is representative of the Side
`Opening Claims. It recites:
`3. The device of claim 2 wherein the proxi-
`mal portion of the tubular structure further
`comprises structure defining a proximal
`side opening extending for a distance along
`the longitudinal axis, and accessible from a
`longitudinal side defined transverse to the
`longitudinal axis, to receive an interven-
`tional cardiology device into the coaxial lu-
`men while the proximal portion remains
`within the lumen of the guide catheter.
`’032 patent at claim 3 (emphasis added).
`As relevant here, Medtronic’s petitions asserted two
`obviousness grounds against the Side Opening Claims: (1)
`Kontos in view of Adams, asserted against the claims of the
`’032 and
`’380 patents, and (2) Kontos in view of
`Ressemann, asserted against the claims of the ’776 patent.
`See ’032 Decision, at *4; ’380 Decision, at *3; ’776 Decision,
`at *3. Each ground relied on modifying Kontos’ extension
`catheter by removing a funnel portion at the proximal end
`of the catheter and replacing it with the distal side open-
`ings disclosed in either Adams or Ressemann. Medtronic
`contended a skilled artisan would be motivated to make its
`proposed modifications for four separate reasons related to
`alleged improvements in the ease and scope of use of Kon-
`tos’ modified device.
`In response, Teleflex argued Medtronic’s proposed
`modifications were unsupported by evidence, based on
`hindsight, and/or would not achieve the benefits Medtronic
`alleged without additional modifications not disclosed in
`Medtronic’s petition. In addition, Teleflex introduced
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`evidence of objective indicia of nonobviousness tied to its
`GuideLiner products, which are undisputedly embodi-
`ments of the Side Opening Claims. This included evidence
`that the GuideLiner was commercially successful, solved
`long-felt but unsolved needs, garnered industry praise, and
`was copied by competitors, including Medtronic.
`Medtronic’s reply acknowledged additional modifica-
`tions were necessary to achieve some of the alleged benefits
`but argued these modifications would not have deterred a
`skilled artisan because each was within the level of ordi-
`nary skill. It also disputed Teleflex’s evidence of objective
`indicia, arguing the evidence lacked a nexus with the Side
`Opening Claims and denying it had copied the GuideLiner
`in developing the Telescope.
`In its final written decisions, the Board held Medtronic
`failed to establish the Side Opening Claims would have
`been obvious. See ’032 Decision, at *21; ’380 Decision, at
`*21; ’776 Decision, at *16. The Board first determined the
`parties’ arguments regarding the references’ disclosures
`and motivations to combine presented a “close case.” ’032
`Decision, at *20; ’380 Decision, at *14; ’776 Decision, at *9.
`To resolve that close prima facie case, the Board then
`turned to Teleflex’s objective evidence, which it found had
`a nexus with the Side Opening Claims. Weighing these
`competing considerations, the Board ultimately deter-
`mined Teleflex’s “strong objective evidence of nonobvious-
`ness” overcame the close prima facie case and that
`Medtronic had failed to prove the Side Opening Claims un-
`patentable. ’032 Decision, at *21; ’380 Decision, at *21; ’776
`Decision, at *16.
`On appeal, Medtronic contends the Board committed a
`host of legal errors in its analysis of Teleflex’s objective ev-
`idence and the parties’ prima facie arguments. For the rea-
`sons given below, we conclude that the Board did not err in
`its analysis and that its findings are supported by substan-
`tial evidence. We
`therefore affirm
`the Board’s
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`determination that Medtronic failed to establish the Side
`Opening Claims would have been obvious.
`1. NEXUS
`Medtronic first argues the Board committed legal error
`when it found a nexus between Teleflex’s objective evidence
`and the Side Opening Claims. Specifically, it contends the
`Board erred by finding nexus based on “three specific fea-
`tures [of the GuideLiner]—(1) rapid exchange functional-
`ity, i.e.¸ having a relatively short lumen at the distal end of
`the catheter; (2) increased back-up support; and (3) a side
`opening”—that were collectively disclosed in a single prior
`art reference, namely Ressemann, and therefore are not in-
`dicative of nonobviousness. Appellant’s Opening Br. at 68.
`We do not agree.
`As an initial matter, it is undisputed that a presump-
`tion of nexus applies in this case because Teleflex’s “as-
`serted objective evidence is tied to a specific product [i.e.,
`the GuideLiner] and that product is the invention disclosed
`and claimed” by the patents-in-suit. See, e.g., ’032 Deci-
`sion, at *19 (internal quotation marks omitted) (quoting
`WBIP, 829 F.3d at 1329). As the Board explained, Med-
`tronic could rebut this presumption by showing Teleflex’s
`objective evidence resulted from features that were known,
`as a combination, in the prior art rather than the claimed
`invention as a whole. Id. The Board did not err in finding
`Medtronic failed to make such a showing here.
`The Board acknowledged Medtronic showed every ele-
`ment of the Side Opening Claims was individually known
`in the prior art but correctly concluded this did not pre-
`clude nexus where the evidence was “tied to the combina-
`tion of features as a whole” and the combination was not
`previously known. Id. (citing WBIP, 829 F.3d at 1331–32).
`Citing testimony from three of Teleflex’s experts, the Board
`found “it was the GuideLiner devices as a whole that re-
`sulted in the evidence of secondary considerations, not any
`individual feature in isolation.” Id. (emphasis added); see
`
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`’380 Decision, at *20; ’776 Decision, at *15. The Board cred-
`ited this testimony as showing that “[w]hen the various
`features of the prior art were combined to form the Guide-
`Liner device . . . the result was a new, market-making, com-
`mercially successful product that provided significant
`benefits over prior art devices, received praise in the art,
`and was copied by competitors.” ’032 Decision, at *19 (em-
`phasis added). The Board thus explicitly grounded its
`nexus finding on a combination of GuideLiner features it
`found were not disclosed, at least as a combination, in the
`prior art. We detect no legal error in this analysis.
`Medtronic accuses the Board of legal error because, in
`its view, Ressemann discloses the combination of features
`upon which Teleflex and the Board relied in its nexus anal-
`ysis. While styled as a dispute of law, Medtronic’s argu-
`ment is merely disagreement with the Board’s fact
`findings. See, e.g., Med. Instrumentation & Diagnostics
`Corp. v. Elekta AB, 344 F.3d 1205, 1221 (Fed. Cir. 2003)
`(“The question of what a reference teaches and whether it
`describes every element of a claim is a question for the
`finder of fact.”); WBIP, 829 F.3d at 1331 (“Questions of
`nexus are highly fact-dependent . . . .”). Medtronic asserts
`Teleflex attributed the GuideLiner’s success to its combi-
`nation of rapid exchange functionality, increased back-up
`support, and “a side opening.” This is a mischaracteriza-
`tion. Teleflex and its experts did not attribute the Guide-
`Liner’s success to a side opening in combination with the
`improved functionalities. Rather, Teleflex argued the
`GuideLiner was successful because, in addition to offering
`increased back-up support and rapid exchange functional-
`ity, it could advantageously “receive the full array of inter-
`ventional cardiology devices,” an ability it grounded in “the
`claimed requirement that the tubular structure have a ‘co-
`axial lumen’ (which facilitates maximizing ‘real estate’) . . .
`combined with a side opening that facilitates entry of . . .
`[an] interventional cardiology device into the tubular por-
`tion.” J.A. 17611 (emphasis added); see also J.A. 23676–67
`
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`(explaining the ability to receive the full array of cardiolog-
`ical devices is “reflected in the claimed requirement for a
`single lumen, as well as [a side opening]” (emphasis
`added)).
`Teleflex, and the Board, thus clearly relied not just on
`the presence of a side opening, as Medtronic contends, but
`on a side opening together with coaxial lumens. Indeed,
`Teleflex’s expert Dr. Graham clearly explained that both
`the coaxial lumen and proximal side opening are critical to
`the GuideLiner’s ability to receive the full array of inter-
`ventional cardiology devices. The proximal side opening
`allows the GuideLiner to “receive interventional cardiology
`devices . . . while the proximal opening was deep inside the
`guide catheter,” and the coaxial lumen “allow[s] the usable
`real estate inside the guide extension catheter to be max-
`imized.” J.A. 10302 ¶ 81. Thus, even if Medtronic’s allega-
`tion that Ressemann discloses a device with a side opening,
`rapid exchange functionality, and increased back-up sup-
`port were true, it does not show the features driving the
`GuideLiner’s success were disclosed in the prior art.
` Medtronic contends the Board’s reliance on the coaxial
`lumens touted by Teleflex’s experts is irrelevant because
`“the Board never made any finding distinguishing the
`claimed side opening from Ressemann.” Appellant’s Reply
`Br. at 27. Medtronic misunderstands the applicable bur-
`dens. In an inter partes review, “the petitioner shall have
`the burden of proving a proposition of unpatentability by a
`preponderance of the evidence.” 35 U.S.C. § 316(e). The
`absence of a finding that Ressemann does not have a coax-
`ial lumen therefore cannot establish Ressemann in fact has
`those features.6 Medtronic also points to the Board’s
`
`6 Medtronic’s assertion that the Board did not make
`any findings distinguishing the claimed side opening from
`Ressemann is also incorrect. In discussing Teleflex’s evi-
`dence of copying, the Board rejected Medtronic’s argument
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`finding in a related proceeding that Ressemann anticipates
`claims 25, 26, 28–31, 34–37, and 39 of the ’380 patent. See
`Medtronic, Inc. v. Teleflex Innovations S.à.r.l., No.
`IPR2020-00129, 2021 WL 2524890, at *11 (P.T.A.B. June
`17, 2021). However, as the Board noted in that decision,
`those claims do not recite coaxial lumens. Id. at *7 n.9.
`The Board’s finding that Ressemann anticipates those
`claims
`therefore
`implies nothing about whether
`Ressemann discloses the coaxial lumens recited by the Side
`Opening Claims.
` We conclude the Board did not err in finding a nexus
`between Teleflex’s objective evidence and the Side Opening
`Claims. Medtronic does not otherwise argue that the
`Board’s finding, if legally proper, is not supported by sub-
`stantial evidence. Accordingly, we affirm the Board’s find-
`ing of nexus.
`
`2. COPYING
`Medtronic next challenges the Board’s finding that
`Medtronic copied the GuideLiner in developing its own
`guide extension catheter, the Telescope. See ’032 Decision,
`at *20; ’380 Decision, at *21; ’776 Decision, at *16. The
`Board found Medtronic copied the GuideLiner based on its
`findings that (1) Medtronic had access to the GuideLiner
`
`
`that Teleflex could not show copying of the GuideLiner, as
`opposed to the prior art, because Ressemann is also “a
`rapid exchange device and has a side opening.” ’032 Deci-
`sion, at *21. The Board found this argument unavailing
`because the copying product “did not merely apply the idea
`of rapid exchange or the use of a side opening,” as taught
`by Ressemann, but instead “reproduce[d] the entire combi-
`nation of features that were assembled for the first time by
`the GuideLiner products.” Id. The Board thus rejected any
`contention that Ressemann disclosed the full combination
`of features utilized by the GuideLiner.
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`while it was developing the Telescope and the products
`have substantially similar designs, and (2) there was “di-
`rect evidence” Teleflex had copied “at least a portion of the
`GuideLiner device.” See, e.g., ’032 Decision, at *20. Med-
`tronic argues the Board’s reliance on substantial similarity
`between the GuideLiner and Telescope products to infer
`copying evinces legal error. In Medtronic’s view, evidence
`of substantial similarity is “irrelevant” because it does not
`show that Medtronic “actually copied” the GuideLiner
`when developing the Telescope. Appellant’s Opening Br.
`at 64. Under a correct view of the law, Medtronic argues,
`the Board “identified no evidence of actual copying efforts”
`and therefore its finding of copying must be reversed. Id.
`“It is well established that copying by a competitor is a
`relevant consideration in the objective indicia analysis”
`and therefore “may be evidence that the patented invention
`is nonobvious.” Liqwd, Inc. v. L’Oreal USA, Inc., 941 F.3d
`1133, 1137 (Fed. Cir. 2019). The fact that a competitor cop-
`ied the patentee’s invention, rather than one within the
`public domain, is probative of nonobviousness because it
`suggests the competitor saw value in the invention that he
`could not achieve without copying. See, e.g., Diamond Rub-
`ber Co. of N.Y. v. Consol. Rubber Tire Co., 220 U.S. 428, 441
`(1911). “Copying may indeed be another form of flattering
`praise for inventive features” of a patented product, Crocs,
`Inc. v. Int’l Trade Comm’n, 598 F.3d 1294, 1311 (Fed. Cir.
`2010), but one undertaken at the risk of infringement.
`These rationales only apply, of course, if the alleged
`copyist has in fact copied the patented product rather than
`independently arrived at a similar design. Indeed, a com-
`petitor’s independent and contemporaneous development
`of a similar product may, in some cases, even suggest the
`patented product would have been obvious. Lindemann
`Maschinenfabrik GMBH v. Am. Hoist & Derrick Co., 730
`F.2d 1452, 1460 (Fed. Cir. 1984) (“[T]he possibility of near
`simultaneous invention by two or more equally talented in-
`ventors working independently . . . may or may not be an
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`
`indication of obviousness when considered in light of all the
`circumstances.”). It is also clear that the copying inquiry
`involves a comparison of the competitor’s product with the
`allegedly copied patented product, rather than the patent’s
`claims, lest the “separate infringement and copying inquir-
`ies [collapse] into a single analysis.” Liqwd, 941 F.3d at
`1137; see also Iron Grip Barbell Co. v. USA Sports, Inc., 392
`F.3d 1317, 1325 (Fed. Cir. 2004) (“[C]opying requires the
`replication of a specific product.”). To that end, we have
`recognized copying must be supported by “actual evidence
`of copying efforts as opposed to mere allegations regarding
`similarities between the accused product and a patent.”
`Liqwd, 941 F.3d at 1337–38.
`We have never held, however, that copying cannot be
`established through evidence of access to and substantial
`similarity with a patented product. Indeed, in Liqwd, the
`very case Medtronic cites for the proposition that substan-
`tial similarity is irrelevant, we expressly recognized that
`“[e]vidence of copying may include . . . access and similarity
`to a patented product.” Id. at 1337; see also Cable Elec.
`Prods., Inc. v. Genmark, Inc., 770 F.2d 1015, 1027 (Fed.
`Cir. 1985) (“Access in combination with similarity can cre-
`ate a strong inference of copying.”), overruled on other
`grounds by Midwest Indus., Inc. v. Karavan Trailers, Inc.,
`175 F.3d 1356 (Fed. Cir. 1999). That same standard is also
`universally applied in the copyright context, which like-
`wise requires actual copying of a copyrighted work rather
`than similarity by happenstance. See, e.g., Walker v. Time
`Life Films, Inc., 784 F.2d 44, 48 (2d Cir. 1986) (“Copying
`may be inferred where a plaintiff establishes that the de-
`fendant had access to the copyrighted work and that sub-
`stantial similarities exist as to protectible material in the
`two works.”).
`Medtronic’s contention that the Board identified no ev-
`idence of actual copying is at odds with this precedent. Ev-
`idence of access and substantial similarity is evidence of
`copying. Medtronic’s argument is tantamount to requiring
`
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`MEDTRONIC, INC. v. TELEFLEX INNOVATIONS S.A.R.L.
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`15
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`that copying can be proven only by direct evidence “such as
`photos of patented features or disassembly of products,”
`Liqwd, 941 F.3d at 1137, rather than circumstantial evi-
`dence such as access and similarity. Our case law has
`never drawn any such distinction, nor would such a distinc-
`tion be consistent with basic principles of evidence and in-
`ference. Circumstantial evidence is just that—evidence. It
`establishes that a given fact is more likely to be true than
`one would otherwise believe in the absence of the evidence.
`Nor is circumstantial evidence second-class to direct evi-
`dence: “Circumstantial evidence is not only sufficient, but
`may also be more certain, satisfying and persuasive than
`direct evidence.” Michalic v. Cleveland Tankers, Inc., 364
`U.S. 325, 330 (1960) (citation omitted).
`Here, there is more than sufficient circumstantial evi-
`dence to support the Board’s finding of copying.7 See
`WBIP, 829 F.3d at 1336 (“Copying is a question of fact” re-
`viewed for substantial evidence). Teleflex’s experts “per-
`suasively demonstrate[d] that the . . . Telescope products,
`when considered as a whole, are substantially similar in
`design to then-existing GuideLiner products on the mar-
`ket, including the combined use of a flexible tip, reinforced
`portion, angled opening, pushrod, and rounded push tab.”
`’032 Decision, at *20 (citing J.A. 10052–57 ¶¶ 231–39).
`Medtronic contends the Board disregarded differences be-
`tween the GuideLiner and Telescope in finding substantial
`similarity. Not so. The Board acknowledged the Telescope
`“differs from the GuideLiner V3 in its use of a hydrophilic
`coating and a round pushwire, and the ‘half pipe’ design of
`the two products is not identical.” Id. It simply found,
`again crediting Teleflex’s expert, that these differences
`
`
`It is undisputed that the GuideLiner was publicly
`7
`available on the market and accessible to Medtronic while
`it was developing the Telescope.
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`16
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`MEDTRONIC, INC. v. TELEFLEX INNOVATIONS S.A.R.L.
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`were not so significant as to preclude substantial similarity
`and the corresponding inference that Medtronic copied. Id.
`Medtronic’s argument that the Board committed legal
`error by relying on evidence of substantial similarity is
`meritless.8 Because the Board’s finding that Medtronic
`copied is supported by substantial evidence, we affirm its
`finding that Medtronic’s copying is indicative of nonobvi-
`ousness.
`
`3. ADDITIONAL OBJECTIVE INDICIA
`In addition to Medtronic’s copying, the Board relied on
`multiple other objective indicia of nonobviousness, includ-
`ing evidence the GuideLiner was copied by other competi-
`tors, enjoyed “a high level of commercial success,” “received
`significant praise in the industry,” and solved long-felt
`needs within the medical community for catheters with in-
`creased back-up support.9 See, e.g., ’032 Decision, at *16–
`20. Medtronic does not challenge any of these findings on
`appeal. Thus, having affirmed the Board’s findings of
`nexus and Medtronic’s copying, the Board’s findings re-
`lated to objective indicia remain entirely intact.
`The Board’s findings related to Teleflex’s objective evi-
`dence played a critical role in its determination that the
`Side Opening Claims are not unpatentable. The Board ex-
`pressly turned to that “strong evidence” in order to resolve
`
`8 Medtronic also disputes the Board’s finding of “di-
`rect evidence” of copying on the same grounds that it dis-
`putes the Board’s finding of substantial similarity: that the
`evidence is insufficient to show actual copying. See, e.g.,
`’032 Decision, at *20. We reject those arguments for the
`same reasons.
`9 The Board also considered Teleflex’s evidence that
`competitors licensed the patents-in-suit but found this evi-
`dence to have limited probative value. ’032 Decision, at
`*17. We therefore do not consider this evidence on appeal.
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`17
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`the parties’ close prima facie arguments and, on that basis,
`found Medtronic had failed to establish the obviousness of
`the Side Opening Claims. E.g., ’032 Decision, at *21. While
`we review the ultimate question of obviousness de novo, the
`Board’s finding that the objective evidence carried signifi-
`cant weight is entitled to deference. In re Inland Steel Co.,
`265 F.3d 1354, 1366 (Fed. Cir. 2001) (“[W]e give the Board
`broad deference in its weighing of the [objective] evidence
`before it.”); see also Bristol-Myers Squibb Co. v. Teva
`Pharms. USA, Inc., 752 F.3d 967, 978 (Fed. Cir. 2014) (“We
`give deference to a lower court’s factua