Case: 21-2037 Document: 37 Page: 1 Filed: 07/11/2022
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`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`LG ELECTRONICS INC.,
`Appellant
`
`v.
`
`IMMERVISION, INC.,
`Appellee
`______________________
`
`2021-2037, 2021-2038
`______________________
`
`Appeals from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in Nos. IPR2020-
`00179, IPR2020-00195.
`______________________
`
`Decided: July 11, 2022
`______________________
`
`JULIE S. GOLDEMBERG, Morgan, Lewis & Bockius LLP,
`Philadelphia, PA, argued for appellant. Also represented
`by DION MICHAEL BREGMAN, ALEXANDER STEIN, Palo Alto,
`CA; ANDREW V. DEVKAR, Los Angeles, CA; WILLIAM R.
`PETERSON, Houston, TX.
`
` JOHN DAVID SIMMONS, Panitch Schwarze Belisario &
`Nadel, LLP, Wilmington, DE, argued for appellee. Also
`represented by DENNIS JAMES BUTLER; KEITH AARON
`JONES, STEPHEN EMERSON MURRAY, Philadelphia, PA.
` ______________________
`
`
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`LG ELECTRONICS INC. v. IMMERVISION, INC.
`
`Before NEWMAN, STOLL, and CUNNINGHAM, Circuit
`Judges.
`Opinion for the court filed by Circuit Judge STOLL.
`Opinion dissenting in part filed by Circuit Judge
`NEWMAN.
`
`STOLL, Circuit Judge.
`This appeal requires us to consider how to treat a prior
`art reference in which the alleged teaching of a claim ele-
`ment would be understood by a skilled artisan not to be an
`actual teaching, but rather to be an obvious error of a typo-
`graphical or similar nature. LG Electronics Inc. appeals
`from the United States Patent Trial and Appeal Board’s fi-
`nal written decisions in a pair of inter partes review pro-
`ceedings challenging claims 5 and 21 of U.S. Patent
`No. 6,844,990. In both proceedings, the Board found that
`LG had not shown the challenged claims were unpatenta-
`ble. Because substantial evidence supports the Board’s
`finding that prior art disclosure critical to both of LG’s pe-
`titions for inter partes review was an apparent error that
`would have been disregarded or corrected by a person of
`ordinary skill in the art, we affirm.
`BACKGROUND
`I
`The ’990 patent relates to capturing and displaying dig-
`ital panoramic images. Panoramic (e.g., super-wide angle)
`objective lenses typically have linear image point distribu-
`tion functions. This means there is a linear relationship
`between the distance of an image point from the image’s
`center and the corresponding relative angle of the object
`point to the image’s center. While this linearity allows dig-
`ital panoramic images to be easily rotated, shifted, and en-
`larged or shrunk, it also limits image quality to “the
`resolution of the image sensor used when taking the initial
`image.” ’990 patent col. 3 ll. 1–9. This limitation on image
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`quality is most noticeable when enlarging sectors of the im-
`age. The ’990 patent purports to improve the resolution of
`particular sectors of a digital panoramic image “without
`the need to increase the number of pixels per unit of area
`of an image sensor or to provide an overlooking optical en-
`largement system.” Id. at col. 3 ll. 35–42.
`Specifically, the ’990 patent specification describes cap-
`turing an initial digital panoramic image using an objective
`lens having a non-linear image point distribution function
`that “expands certain zones of the image and compresses
`other zones of the image.” Id. at col. 3 l. 62–col. 4 l. 38. The
`“non-linearity of the initial image” can then be corrected to
`produce a final panoramic image for display. Id. at col. 4
`ll. 47–53. “[T]he expanded zones of the image cover” a
`higher “number of pixels of the image sensor” than they
`would with a lens having linear image point distribution.
`Id. at col. 3 l. 62–col. 4 l. 10.
`The challenged claims specify that the lens “com-
`presses the center of the image and the edges of the image
`and expands an intermediate zone of the image located be-
`tween the center and the edges of the image.” Id. at col. 19
`ll. 48–51. Dependent claim 5, which depends from can-
`celled claim 1, is representative:
`1. (Cancelled) A method for capturing a digital
`panoramic image, by projecting a panorama onto
`an image sensor by means of a panoramic objective
`lens, the panoramic objective lens having an image
`point distribution function that is not linear rela-
`tive to the field angle of object points of the pano-
`rama, the distribution function having a maximum
`divergence of at least ±10% compared to a linear
`distribution function, such that the panoramic im-
`age obtained has at least one substantially ex-
`panded zone and at least one substantially
`compressed zone.
`. . .
`
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`LG ELECTRONICS INC. v. IMMERVISION, INC.
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`5. The method according to claim 1, wherein the
`objective lens compresses the center of the image
`and the edges of the image and expands an interme-
`diate zone of the image located between the center
`and the edges of the image.
`Id. at col. 19 ll. 26–51 (claim 5) (emphasis added); see also
`id. at col. 20 l. 51–col. 21 l. 11 (claim 21).1
`II
`On November 27, 2019, LG filed two petitions for inter
`partes review, each challenging a dependent claim of the
`’990 patent. J.A. 322–66 (IPR2020-00179 challenging
`claim 5); J.A. 3338–87 (IPR2020-00195 challenging claim
`21). Fundamental to LG’s obviousness arguments is U.S.
`Patent No. 5,861,999 (“Tada”), directed to a “Super Wide
`Angle Lens System Using an Aspherical Lens.”2 Tada de-
`scribes four embodiments that share a general system
`structure and differ in aspects such as lens element thick-
`ness, separation distance, and lens shape. Each embodi-
`ment satisfies a set of eight conditions relating to the
`aspheric characteristics of various lens elements. Tada
`col. 2 ll. 7–67. The embodiment relevant to this appeal,
`Embodiment 3, is depicted in Figure 11 and described by a
`prescription—or set of optical parameters—set forth in Ta-
`ble 5. Id. Fig. 11, Tbl. 5.
`Tada claims priority from Japanese Patent Application
`No. 09-201903, which was published as JP H10-115778
`(“Japanese Priority Application”).
` Tada “expressly
`
`Independent claims 1 and 17 were cancelled in ex
`1
`parte reexamination. The claims at issue here were not
`subject to reexamination.
`2 Tada was published with the title “Super Wide An-
`gel Lens System Using an Aspherical Lens”; a Certificate
`of Correction dated December 28, 1999, updated the title to
`its present form.
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`incorporated” these priority applications “by reference in
`their entireties.” Id. at col. 3 ll. 9–13.
`LG argued that Tada discloses, as recited in the chal-
`lenged claims, a panoramic objective lens having a non-lin-
`ear image point distribution that compresses the center
`and edges of an image and expands an intermediate zone
`of the image between the center and the edges of the image.
`Tada, however, does not explicitly discuss the image point
`distribution functions of its lenses. Instead, LG relied on
`its expert Dr. Russell Chipman’s declaration for the propo-
`sition that Tada’s third embodiment has a distribution
`function producing “a compressed center and edges of the
`image and an expanded intermediate zone of the image be-
`tween the center and the edges of the image” as recited in
`challenged claims 5 and 21.
`Dr. Chipman “reconstruct[ed] the lens of Figure 11 [of
`Tada] using the information in Table 5 of Tada” by input-
`ting certain “information from Table 5 [as published] . . .
`into an optical design program.” J.A. 1486–87 (Chipman
`Decl. ¶ 46). Dr. Chipman then plotted the image point dis-
`tribution function for the lens system at six wavelengths
`and testified that the “function is not linear” in any of them.
`J.A. 1490–93 (Chipman Decl. ¶¶ 52–53). More specifically,
`Dr. Chipman explained that this embodiment of Tada’s
`lens system “compresses the center of the image and the
`edges of the image and expands an intermediate zone of the
`image located between the center and the edges of the im-
`age.” J.A. 1503 (Chipman Decl. ¶ 68). LG relied exclu-
`sively on Dr. Chipman’s calculations and plots using the
`prescription in Table 5 to show that Tada’s third embodi-
`ment meets the compression and expansion zone limitation
`of the challenged claims. LG did not rely on any other prior
`art reference or any other portion of Tada’s disclosure for
`this limitation.
`The Board instituted inter partes review in both pro-
`ceedings. The parties engaged in expert discovery, with
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`LG ELECTRONICS INC. v. IMMERVISION, INC.
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`ImmerVision deposing Dr. Chipman and LG deposing Im-
`merVision’s expert, Mr. David Aikens. In its patent owner
`response, ImmerVision, relying on Mr. Aikens’ declaration,
`argued that Tada’s Table 5 includes a readily apparent er-
`ror that cannot form the basis of any obviousness ground.
`Mr. Aikens, who was specifically tasked with verifying
`Dr. Chipman’s work, began by following Dr. Chipman’s
`process, creating a lens model from the prescription, in-
`cluding the aspheric coefficients—values defining the sur-
`face shape of an aspherical lens—in Tada’s Table 5 using
`an optical design program. J.A. 3031–32 (Aikens Decl.
`¶ 58). From the outset, Mr. Aikens noticed that something
`was wrong: the physical surface of his lens model based on
`Tada’s Table 5 and the example lens depicted in Tada’s Fig-
`ure 11 did not match. J.A. 3031–32 (Aikens Decl.
`¶¶ 57–59). Because of this discrepancy, Mr. Aikens com-
`pared the sag table—a table of heights of a lens surface
`with respect to the optical axis—generated for his lens
`model with the sag table provided in Tada’s Table 6 corre-
`sponding to Embodiment 3. J.A. 3032–33 (Aikens Decl.
`¶ 60) (“[T]he sag table can be used as a check to make sure
`the equation and its coefficients are correctly understood
`. . . this is so commonly required that a sag table is a stand-
`ard output of optical design codes.”). They also did not
`match. J.A. 3034–35 (Aikens Decl. ¶¶ 61–62). Next,
`Mr. Aikens reviewed the image plane for his lens model to
`evaluate the magnitude of the error and discovered that
`the output image was distorted with “precisely the kind of
`uncorrected field curvature that Tada was explicitly trying
`to prevent.” J.A. 3035–36 (Aikens Decl. ¶¶ 63–64); see also
`J.A. 2423 (Aikens Dep. 132:1–10) (explaining that the
`model “couldn’t make a usable image . . . it was so clearly
`wrong, there was no point in spending more time on it”).
`Having established that the image was severely dis-
`torted, Mr. Aikens began comparing other aspects of his
`lens model with the “diagrams of the aberrations, astigma-
`tism, and distortion” provided in Tada for its third
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`embodiment using “standard output features” of optical de-
`sign code. J.A. 3036–38 (Aikens Decl. ¶¶ 65–66). For ex-
`ample, Mr. Aikens compared the comatic aberration plot
`generated for his lens model to Tada’s Figures 15A–D (co-
`matic aberration plots for the model lens system using Ta-
`ble 5 data). J.A. 3036–38 (Aikens Decl. ¶¶ 65–67). These,
`too, did not match. Mr. Aikens explained that “at this
`point, [a person of ordinary skill in the art] would be con-
`vinced that there was an error in [the] model and that the
`error was significant.” J.A. 3039 (Aikens Decl. ¶ 68); see
`also J.A. 2423 (Aikens Dep. 132:18–21) (“I recognized that
`there had to be something wrong with the aspheric coeffi-
`cients. This is almost always where problems occur.”).
`Mr. Aikens then noticed that, as depicted in the repro-
`duced tables below, the aspheric coefficients from Table 3,
`which corresponds to Tada’s Embodiment 2, “were exactly
`the same as in Table 5,” which corresponds to Embodiment
`3. J.A. 2425 (Aikens Dep. 134:16–21).
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`Tada Tbl. 3 (annotated).
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`Id. Tbl. 5 (annotated).
`Mr. Aikens turned next to Tada’s Table 9, which pro-
`vides ratios of the radius of curvature and aspherical fac-
`tors of Tada’s aspherical lens element to the focal length of
`the entire lens system. J.A. 3039–40 (Aikens Decl. ¶ 69);
`Tada Tbl. 9. Because the focal length of the entire lens sys-
`tem was defined as 1 for each embodiment, the values for
`conditions (2), (3), and (4) in Table 9 should have matched
`the aspheric coefficients A4, A6, and A8 in Table 5. But, as
`depicted below, they did not match:
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`LG ELECTRONICS INC. v. IMMERVISION, INC.
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`Tada Tbl. 5 (annotated).
`
`
`
`Id. Tbl. 9 (annotated).
`Finally, Mr. Aikens reviewed Tada’s Japanese Priority
`Application and saw that the aspheric coefficients in its Ta-
`ble 5—which corresponded to the same lens embodiment as
`Tada’s Table 5—differed from those in Tada’s Table 5.
`J.A. 3041–42 (Aikens Decl. ¶¶ 72–75). The relevant por-
`tions of these tables are reproduced below.
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`Tada Tbl. 5 (annotated).
`
`
`
`Japanese Priority Application ¶ [0032] (Tbl. 5) (annotated).
`It became clear to Mr. Aikens that, after “chang[ing]
`the aspheric coefficients [of his model] to match” those of
`the Japanese Priority Application, the aspheric coefficients
`in the Japanese Priority Application were the correct ones
`and that they yielded a lens surface that was “a perfect
`match to the surface described in Table 6.” J.A. 3042
`(Aikens Decl. ¶¶ 74–75). In other words, there was a tran-
`scription, or copy-and-paste, error in Tada. The disclosures
`in Tada’s Table 5, which were intended to correspond to its
`Embodiment 3, were actually identical to those in Table 3,
`which corresponded to Embodiment 2.
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`LG ELECTRONICS INC. v. IMMERVISION, INC.
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`In its final written decisions, the Board found that the
`“disclosure of aspheric[] coefficients in Table 5 of Tada is
`an obvious error” that a person of ordinary skill in the art
`would have recognized and corrected. LG Elecs. Inc. v. Im-
`merVision, Inc., No. IPR2020-00179, 2021 WL 1904645, at
`*11 (P.T.A.B. 2021) (Final Written Decision). 3 Continuing,
`the Board found that because the correct aspheric coeffi-
`cients in Table 5 of the Japanese Priority Application do
`not satisfy the language of the challenged claims, LG had
`not met its burden to prove the challenged claims un-
`patentable as obvious. Id. Although LG was free to rely on
`the rest of the reference, it had not done so. The Board
`concluded that LG did not meet its burden to prove the
`challenged claims would have been obvious by a preponder-
`ance of evidence. Id.
`LG appeals. We have jurisdiction under 28 U.S.C.
`§ 1295(a)(4)(A).
`
`DISCUSSION
`Obviousness is a legal question based on underlying
`findings of fact. Univ. of Strathclyde v. Clear-Vu Lighting
`LLC, 17 F.4th 155, 160 (Fed. Cir. 2021). We review the
`Board’s ultimate obviousness determination de novo and
`underlying factual findings, including whether a prior art
`reference includes an obvious typographical or similar er-
`ror that would be apparent to persons of ordinary skill, for
`substantial evidence. “The substantial evidence standard
`asks ‘whether a reasonable fact finder could have arrived
`at the agency’s decision.’” OSI Pharms., LLC v. Apotex
`
`
`3 The Board issued a nearly identical decision in the
`proceeding concerning claim 21. LG Elecs. v. ImmerVision,
`Inc., No. IPR2020-00195, 2021 WL 2486694, (P.T.A.B.
`2021). For brevity, we cite only the decision in IPR2020-
`00179, the proceeding concerning claim 5.
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`Inc., 939 F.3d 1375, 1381–82 (Fed. Cir. 2019) (quoting In re
`Gartside, 203 F.3d 1305, 1312 (Fed. Cir. 2000)).
`It is undisputed that the aspheric coefficients in Tada’s
`Table 5 were erroneous. Appellant’s Br. 15; see also
`J.A. 2903–04 (Chipman Dep. 49:2–50:24); J.A. 3039–40
`(Aiken Decl. ¶¶ 68–69). And “[t]here is no dispute that if a
`lens were constructed using the (correct) aspherical data
`from Tada’s Japanese priority application, the lens would
`not satisfy the [compression and expansion zone] limitation
`of claims 5 and 21.” Appellant’s Br. 15. Therefore, the pri-
`mary question before us is whether substantial evidence
`supports the Board’s fact finding that the error would have
`been apparent to a person of ordinary skill in the art such
`that the person would have disregarded the disclosure or
`corrected the error.
`
`I
`We begin with the legal standard. Over fifty years ago,
`our predecessor court reversed the decision of the Board of
`Patent Appeals and Interferences4 affirming the rejection
`of certain claims directed to a specific compound of inhala-
`tion anesthetic—CF3CF2CHClBr—as obvious. In re Yale,
`434 F.2d 666 (C.C.P.A. 1970). The obviousness rejection
`relied on the errant disclosure of this compound in an arti-
`cle published a few years prior. Id. at 667. That article
`included CF3CF2CHClBr as one of nine compounds plotted
`on a graph with other inhalant anesthetic compounds. Id.
`This was the only instance of CF3CF2CHClBr within the
`reference; the compound CF3CHClBr appeared throughout
`the rest of the article. Id. At the time, CF3CF2CHClBr was
`not a known compound. Id. Our predecessor court set forth
`the standard for evaluating these types of apparent or “ob-
`vious typographical error[s].” Id. at 669.
`
`
`4 The Board of Patent Appeals and Interferences is
`the predecessor of the Patent Trial and Appeal Board.
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`The Yale court explained that “any number” of several
`pieces of evidence “individually or cumulatively would . . .
`alert one of ordinary skill in the art to the existence” of the
`error. Yale, 434 F.2d at 669. First, the court noted the
`inconsistency
`between
`the
`reference’s
`figures:
`“CF3CF2CHClBr in Fig. 3 is the only compound listed in
`any figure which is not also listed in Fig. 1.” Id. at 667.
`Second, “[a]ll eight [compounds listed in Clements] have
`the identical [chemical property value] in Fig. 3 that was
`listed for them in Fig. 1,” with the exception of the
`CF3CF2CHClBr compound, which “has the [chemical prop-
`erty value] which was assigned in Fig. 1 to CF3CHClBr.”
`Id. at 669. Because CF3CF2CHClBr and CF3CHClBr are
`two different compounds, the court explained that it would
`not be “likely to have the same [chemical property value].”
`Id. at 667. Finally, in response to a letter from a reader,
`one of the authors of the article stated that the reference to
`CF3CF2CHClBr was “of course, an error as [the reader]
`suppose[d,] and CF3CF2CHClBr should read CF3CHClBr.”
`Id. Although the court gave less probative weight to this
`last piece of evidence because it “had not been sworn to,”
`the court found it supported the conclusion that the disclo-
`sure of CF3CF2CHClBr was in error. Id. at 669.
`The court in Yale held that where a prior art reference
`includes an obvious error of a typographical or similar na-
`ture that would be apparent to one of ordinary skill in the
`art who would mentally disregard the errant information
`as a misprint or mentally substitute it for the correct infor-
`mation, the errant information cannot be said to disclose
`subject matter. Id. at 669. The remainder of the reference
`would remain pertinent prior art disclosure. This standard
`for reviewing errors in disclosures has been undisturbed
`for half a century and we are bound to apply it. Deckers
`Corp. v. United States, 752 F.3d 949, 955–56 (Fed. Cir.
`2014) (discussing stare decisis). Moreover, we view Yale’s
`standard as sound law, ensuring that an obviously errant
`disclosure of a typographical or similar nature would not
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`prevent a true inventor of the claimed subject matter from
`later obtaining patent protection.
`II
`We now address the Board’s fact finding in this case.
`Based on the record before it, the Board found that the as-
`pheric coefficients in Tada’s Table 5 were an obvious error
`of a typographical or similar nature that would have been
`apparent to a skilled artisan. Final Written Decision,
`2021 WL 1904645, at *11. As explained below, we conclude
`that the Board’s finding is supported by substantial evi-
`dence.
`The Board correctly identified several aspects of the
`disclosure in Table 5 that would alert the ordinarily skilled
`artisan that the disclosure was an obvious error of a typo-
`graphical or similar nature. First, Table 5 in Tada’s Japa-
`nese Priority Application has different values for the
`aspheric coefficients than Table 5 in Tada. J.A. 3041–42
`(Aikens Decl. ¶¶ 72–75). Citing Mr. Aiken’s declaration,
`the Board found that the discrepancy between the coeffi-
`cients in Tada’s Table 5 and the Japanese Priority Applica-
`tion’s Table 5 was “grounded [in] a transcription error in
`the values for A4, A6, and A8 in Tada’s Table 5, namely,
`inadvertent duplication of the values for the aspherical
`data in Table 3.” Final Written Decision, 2021 WL
`1904645, at *9. Indeed, Mr. Aikens identified the “obvious
`typographical error in Table 5” as an error in which the
`“aspheric coefficients listed in Table 5 were inadvertently
`copied over from Table 3, which describes Embodiment 2 of
`Tada.” J.A. 3030 (Aikens Decl. ¶ 56). The Board explained
`that the “correspondence of the Tables 1, 3, 7, and 9 be-
`tween the [Japanese Priority Application] and Tada itself
`is apparent, even prior to translation, as is the incon-
`sistency as to the aspherical data for Table 5.” Final Writ-
`ten Decision, 2021 WL 1904645, at *9.
`Second, the Board found that an inconsistency between
`Tada’s Tables 5 and 9 “ma[de] it apparent that there is an
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`error in Table 5’s recitation of the aspheric[] coefficients.”
`Id. at *8. It was undisputed that Tada’s Tables 5 and 9 are
`inconsistent: the aspheric coefficients A4, A6, and A8 in
`Tada’s Table 5 should match the values for conditions
`(2)–(4) in Table 9 but do not. Id. at *7–8; see Yale, 434 F.2d
`at 667 (describing the internal inconsistency within a ref-
`erence as a signal that a person of ordinary skill “would
`readily recognize” as portending error). As Mr. Aikens ex-
`plained, and Dr. Chipman agreed, because the focal length
`for the entire lens system is set to 1 in each of the embodi-
`ments, “Table 9 rather conveniently gives you the aspheric
`coefficients for each of the four embodiments, and it
`matches correctly for [Embodiments] 1, 2[,] and 4 and is
`totally wrong for [Embodiment] 3.” J.A. 2427 (Aikens Dep.
`136:11–15); J.A. 3039–40 (Aikens Decl. ¶ 69) (The “values
`[in Table 9] do not match the values in Table 5 because Ta-
`ble 5 is in error.”); see also J.A. 2902–04 (Chipman Dep.
`48:9–50:24) (conceding that the aspheric coefficients in Ta-
`ble 5 match the values in Table 9 for each of the embodi-
`ments except for Embodiment 3).
`Third, the Board found that having identical aspheric
`coefficients in Tada’s Tables 3 and 5 “is incongruous with
`the differences in the values of other data for the lens sys-
`tems.” Final Written Decision, 2021 WL 1904645, at *8. In
`other words, given the other significant differences be-
`tween the embodiments, it was unusual for Tables 3 and 5
`to list the same aspheric coefficients. Id.; J.A. 2425 (Aikens
`Dep. 134:4–21) (“I noticed that when I was typing in Em-
`bodiment 2 from Table 3, the aspheric coefficients were ex-
`actly the same as in Table 5, and that’s never true. That
`could not be right.”); see also Yale, 434 F.2d at 667 (noting
`the improbability of two different compounds having the
`same chemical property value).
`Considering all the evidence before it, the Board rea-
`sonably found that Tada’s Table 5 includes an obvious error
`of a typographical or similar nature that would have been
`apparent to one of ordinary skill in the art, who would have
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`17
`
`substituted it with the correct information and, thus, that
`Table 5 cannot be said to disclose a lens that compresses
`the center of the image and the edges of the image and ex-
`pands an intermediate zone of the image located between
`the center and the edges of the image. Final Written Deci-
`sion, 2021 WL 1904645, at *11.
`III
`LG presents two additional arguments. First, LG con-
`tends that Yale sets forth an “Immediately Disregard or
`Correct” standard that imposes a temporal urgency on the
`discovery of the error before the error can be considered
`“obvious” to a skilled artisan. See, e.g., Appellant’s Br. 4–5,
`15, 23, 25, 28. Applying this reading of Yale, LG argues
`that Mr. Aikens’ “convoluted process” that took “ten to
`twelve hours” to complete clearly weighed against the ob-
`viousness of the error. Id. at 27–28. LG reasons that be-
`cause Tada has remained uncorrected in the public domain
`for over 20 years, LG should have been able to rely on the
`aspheric coefficients in Tada’s Table 5 as published.
`LG’s suggestion that Yale requires a person of ordinary
`skill in the art to immediately recognize the apparent error
`is incorrect. As the Board correctly explained, the length
`of time and the “particular manner” in which the error was
`actually discovered “does not diminish that there is an ob-
`vious error in Tada within the meaning of Yale.” Final
`Written Decision, 2021 WL 1904645, at *10. Contrary to
`LG’s assertions, Yale does not impose a temporal require-
`ment. Nor does LG cite any other authority requiring that
`the error be discovered within a specified amount of time.
`Certainly, the amount of time it takes a skilled artisan to
`detect an error may be relevant to whether an error is, in
`fact, an apparent error under Yale. But this is just one fac-
`tor for the fact finder to consider as part of the overall anal-
`ysis.
` Here, the Board considered the totality of
`circumstances and found that Tada’s disclosure of aspheric
`coefficients in Table 5 is an obvious error of a typographical
`
`

`

`Case: 21-2037 Document: 37 Page: 18 Filed: 07/11/2022
`
`18
`
`LG ELECTRONICS INC. v. IMMERVISION, INC.
`
`or similar nature, notwithstanding the amount of time that
`preceded detection of the obvious error. For the reasons
`explained above, this finding is supported by substantial
`evidence.
`Second, LG suggests that Yale is limited to instances
`in which the error is a typographical error. Appellant’s
`Br. 22–23. For example, LG argues that Yale should be
`narrowly limited to errors such as the spelling mistake in
`Tada’s title upon original publication (“Super Wide Angel
`Lens”), which was corrected soon after (“Super Wide Angle
`Lens”), or in Tada’s cancelled claim 1 (“arranged in this or-
`der form an object side”), which was also corrected (“ar-
`ranged in this order from an object side”). Appellant’s
`Br. 30. According to LG, any other interpretation of the
`Yale standard would “grant[] a monopoly over a resource
`that was previously freely available to all, destabilizing the
`patent system.” Id. at 24. We disagree.
`While our predecessor court described the error in Yale
`as typographical, the error at issue here is not so far afield
`as to warrant a different outcome. As the Board found and
`Mr. Aikens, testified, the error in Tada’s Table 5 was “a
`transcription error . . . namely, inadvertent duplication of
`the values for the aspherical data in Table 3.” Final Writ-
`ten Decision, 2021 WL 1904645, at *9; see also J.A. 3030
`(Aikens Decl. ¶ 56). The distinction between the typo-
`graphical error in Yale and the copy-and-paste error here
`is a distinction without a difference.
`CONCLUSION
`We have considered the parties’ remaining arguments
`and find them unpersuasive. For the foregoing reasons, we
`affirm the Board’s final written decisions.
`AFFIRMED
`
`

`

`Case: 21-2037 Document: 37 Page: 19 Filed: 07/11/2022
`
`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`LG ELECTRONICS INC.,
`Appellant
`
`v.
`
`IMMERVISION, INC.,
`Appellee
`______________________
`
`2021-2037, 2021-2038
`______________________
`
`Appeals from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in Nos. IPR2020-
`00179, IPR2020-00195.
`______________________
`
`NEWMAN, Circuit Judge, dissenting in part.
`The court today finds an “error of a typographical or
`similar nature” in the specification of the Tada reference
`and rules that because the error is “obvious” the erroneous
`portion of the Tada reference1 is eliminated as prior art.
`Maj. Op. at 16–17. I cannot agree that this error is typo-
`graphical or similar in nature, for its existence was not dis-
`covered until an expert witness conducted a dozen hours of
`experimentation and calculation. Appx2428 (LG Elecs. Inc.
`
`
`1 U.S. Patent No. 5,861,999 (“Tada” or “the ’999 Pa-
`tent”).
`
`

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`Case: 21-2037 Document: 37 Page: 20 Filed: 07/11/2022
`
`2
`
`LG ELECTRONICS INC. v. IMMERVISION, INC.
`
`v. ImmerVision, Inc., No. IPR2020-00179, (P.T.A.B. Oct. 1,
`2020), Aikens Dep. 137:3–138:3, Ex. 1018).
`The appearance of a few of the same numbers in two
`different tables in the Tada reference provides no infor-
`mation as to which numbers and tables are correct and
`which may be in error. In contrast, a typographical or sim-
`ilar error is apparent to the reader and may conveniently
`be ignored without impeaching the content of the infor-
`mation. The error in the Tada reference cannot properly
`be deemed typographical or similar.
`The events that preceded the expert’s discovery of the
`error in the Tada reference cannot be ignored. The possibly
`erroneous numbers in the Tada tables were not noticed by
`any of the patent attorneys throughout the prosecution of
`Tada’s U. S. application. The now “obvious” error was not
`noticed by the patent examiner during a complex prosecu-
`tion in which claims were amended and prior art distin-
`guished.
`The purportedly “typographical or similar” error was
`not included in the Certificate of Correction that was ob-
`tained for typographical errors in the issued Tada patent.
`This error was not noticed by two distinct Patent Trial and
`Appeal Boards in instituting these two inter partes review
`(“IPR”) petitions, despite the technological expertise of the
`Board.
`The error in Tada Table 5 was not corrected anywhere,
`even after 20 years of publication. Not until an expert wit-
`ness conducted experiments and compared the U. S. appli-
`cation with the Japanese Priority document2 did anyone
`discover the possibly erroneous numbers in Table 5.
`Appx2422–2430; Appx3030–3042.
`
`
`2 JP H10-115778 (July 28, 1998).
`
`

`

`Case: 21-2037 Document: 37 Page: 21 Filed: 07/11/2022
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`LG ELECTRONICS INC. v. IMMERVISION, INC.
`
`3
`
`The specifics of what led the expert, Mr. Aikens, to dis-
`cover the erroneous values in Table 5 also cast doubt on
`whether the error may be deemed “obvious and apparent.”
`Mr. Aikens testified that he had fully modeled Tada’s Em-
`bodiment 3—relying on data from Table 5—without notic-
`ing the error. Appx2421–22 (Aikens Dep. 130:8–22). It was
`only after his model was completed that he noticed the lens
`created a distorted image, leading him to presume there
`was perhaps some error in Tada. Appx2422 (Aikens Dep.
`131:3–7). At this point in his experimentation, he did not
`know what the error was, and certainly did not know how
`to correct the error; he only suspected that an e