Apple Inc. v. Uniloc 2017 LLC

• Court: Court of Appeals for the Federal Circuit
• Decided: February 9, 2021
• Docket: 19-1151
• Status: Unpublished

Opinion

Case: 19-1151 Document: 80 Page: 1 Filed: 02/09/2021

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

APPLE INC., FACEBOOK, INC., WHATSAPP, INC., Appellants

v.

UNILOC 2017 LLC, Cross-Appellant ______________________

2019-1151, 2019-1179, 2019-1203 ______________________

Appeals from the United States Patent and Trademark Office, Patent Trial and Appeal Board in Nos. IPR2017- 00222, IPR2017-01635. ______________________

Decided: February 9, 2021 ______________________

LAUREN B. FLETCHER, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA, for appellant Apple Inc. Also represented by HEATH BROOKS, Washington, DC; S. CALVIN WALDEN, New York, NY.

HEIDI LYN KEEFE, Cooley LLP, Palo Alto, CA, for appel- lants Facebook, Inc., WhatsApp, Inc. Also represented by LOWELL D. MEAD, MARK R. WEINSTEIN; PHILLIP EDWARD MORTON, Washington, DC. Case: 19-1151 Document: 80 Page: 2 Filed: 02/09/2021

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JAMES ETHERIDGE, Etheridge Law Group, Southlake, TX, for cross-appellant. Also represented by RYAN S. LOVELESS, BRETT MANGRUM, JEFFREY A. STEPHENS. ______________________

Before LOURIE, WALLACH, and CHEN, Circuit Judges. LOURIE, Circuit Judge. Apple Inc. (“Apple”) petitioned for inter partes review of U.S. Patent 8,243,723 (“the ’723 patent”), owned by Uniloc Luxembourg S.A. (“Uniloc”). The United States Pa- tent and Trademark Office Patent Trial and Appeal Board (“the Board”) held that claims 1 and 2 of the ’723 patent would have been obvious over the prior art but that Apple failed to demonstrate by a preponderance of the evidence that claims 3–8 would have been obvious. See Apple Inc. v. Uniloc Luxembourg S.A., No. IPR2017-00222, 2018 WL 2355988 (P.T.A.B. May 23, 2018) (“Decision”). Apple ap- peals the Board’s holding that it failed to demonstrate un- patentability of claims 3–8, and Uniloc cross-appeals the Board’s holding that claims 1 and 2 would have been obvi- ous. We affirm the Board’s decision in all respects. BACKGROUND Uniloc owns the ’723 patent, which is directed to sys- tems and methods for delivering instant voice-over-IP (“VoIP”) messages over the Internet. Traditional telephony is based on a public switched telephone network (“PSTN”). ’723 patent col. 1 ll. 20–21. The patent acknowledges that voice messaging in both PSTN and VoIP as well as instant text messaging over an IP network were known. Id. col. 2 ll. 18–30. But the patent asserts that at the time of the invention there remained a need for instant VoIP messag- ing with PSTN support. Id. col. 2 ll. 43–49. The ’723 patent purports to address this need by providing a local instant voice messaging (“IVM”) system that includes an IVM server and one or more IVM clients, Case: 19-1151 Document: 80 Page: 3 Filed: 02/09/2021

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such as VoIP telephones. Id. col. 6 ll. 48–55. The IVM server stores users that are known to the server, including IVM clients and legacy telephone clients. Id. col. 13 ll. 56– 58. The server stores a record for each user, including a contact list that indicates other users with which the user wishes to exchange instant voice messages. Id. col. 13 ll. 58–62. The server also maintains a record of the connec- tivity status of each IVM client (i.e., whether the client is connected to the IVM server and available to receive mes- sages), id. col. 12 ll. 46–52, and facilitates the transmission of messages between clients, id. col. 7 ll. 59–61. To initiate transmission of a voice message, an IVM cli- ent displays a user’s contact list, and the user selects one or more IVM recipients to whom to transmit a voice mes- sage. Id. col. 7 ll. 61–67. “The user selection also generates a start signal to the IVM client that the user is ready to begin instant voice messaging.” Id. col. 8 ll. 1–3. The pa- tent discloses two modes of operation—a “record mode” and an “intercom mode.” Id. col. 7 ll. 53–57. In record mode, in response to the start signal, the IVM client records the user’s speech into a digitized audio file stored on the IVM client. Id. col. 8 ll. 3–7. If a recipient IVM client is con- nected to the IVM server, the audio file is immediately transmitted to the recipient client. Id. col. 8 ll. 28–30. If a recipient client is not connected to the server (i.e., if the recipient client is “unavailable”), the audio file is temporar- ily stored on the server and transmitted to the recipient client when the client connects to the server. Id. col. 8 ll. 30–35. Unlike record mode, according to the patent, intercom mode implements real-time instant voice messaging. In in- tercom mode, instead of recording the user’s speech to an audio file, the IVM client uses one or more buffers to write and transmit successive portions of the user’s speech to the IVM server. Id. col. 11 ll. 33–43. Case: 19-1151 Document: 80 Page: 4 Filed: 02/09/2021

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Apple petitioned for inter partes review of claims 1–8 of the ’723 patent. Claim 1 is the only independent claim at issue, with claims 2–8 depending directly or indirectly from claim 1. Claims 1, 3, and 8 are specifically relevant to this appeal and are reproduced below. 1. A method for instant voice messaging over a packet-switched network, the method comprising: monitoring a connectivity status of nodes within the packet-switched network, said connectivity sta- tus being available and unavailable; recording the connectivity status for each of the nodes; associating a sub-set of the nodes with a client; transmitting a signal to a client including a list of the recorded connectivity status for each of the nodes in the sub-set corresponding to the client; receiving an instant voice message having one or more recipients; delivering the instant voice message to the one or more recipients over a packet-switched network; temporarily storing the instant voice message if a recipient is unavailable; and delivering the stored instant voice message to the recipient once the recipient becomes available. Id. col. 23 l. 56–col. 24 l. 16. 3. The method for instant voice messaging over a packet-switch network according to claim 1, fur- ther comprising the step of: controlling a method of generating the instant voice message based upon the connectivity status of said one or more recipient. Case: 19-1151 Document: 80 Page: 5 Filed: 02/09/2021

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Id. col. 24 ll. 17–26. 8. The method for instant voice messaging over a packet-switch network according to claim 6, wherein said intercom mode comprises the steps of: buffering each of a plurality of successive portions of the instant voice as the instant voice message is recorded; transmitting from each successive buffered por- tion; and delivering each successive portion to the recipients wherein the recipients audibly playing each succes- sive portion as it is delivered. Id. col. 24 ll. 46–54. Relevant to this appeal, Apple alleged that (1) claim 1 would have been obvious over U.S. Patent App. Pub. 2002/0146097 (“Vuori”), (2) claims 2–7 would have been ob- vious over Vuori in view of U.S. Patent App. Pub. 2003/0219104 (“Malik”), and (3) claim 8 would have been obvious over Vuori in view of Malik and U.S. Patent 6,192,395 (“Lerner”). Vuori discloses systems and methods for sending short voice messages (“SVMs”) between mobile devices. To transmit an SVM, a user device records a message spoken by the user. Vuori ¶ 32. The user selects one or more re- cipients of the SVM, and the user device transmits the rec- orded message to an SVM service center (“SVMSC”), which determines the availability of the recipients. Id. ¶ 33–34. Vuori discloses an SVM presence service that accepts, stores, and distributes presence information among clients. Id. ¶ 43. Presence information can include a status indi- cating that a user is online (available), offline (unavaila- ble), or other information. Id. ¶ 47. The SVMSC is able to check the availability of the recipient. Id. ¶ 50. If the re- cipient is available, the SVMSC sends the message Case: 19-1151 Document: 80 Page: 6 Filed: 02/09/2021

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immediately; if the recipient is unavailable, it continues at- tempting to send the message until the recipient either be- comes available or a time out occurs. Id. ¶ 50–51. In one embodiment, the recipient receives a notification of the re- ceived message, which the recipient can accept or reject. Id. ¶ 36. In another embodiment, the sender first deter- mines whether the intended recipient is available by means of a presence service and whether the intended re- cipient has effectively acquiesced to availability by previ- ously joining a “buddy list.” If so, the recipient immediately receives the SVM. Id. Malik discloses systems and methods for sending in- stant voice messages where clients receive and play voice messages received from other clients. Malik ¶ 25. Malik describes a voice instant message (“VIM”) server that mon- itors presence information of clients. Id. ¶ 26. To initiate transmission of a voice message, a user speaks into a mi- crophone of a client device, which generates a voice record- ing. Id. ¶ 33. The client then sends the voice recording to a server. Id. ¶ 36. If a recipient client is unavailable to receive the message, the message is stored in a queue and delivered when the recipient client connects to the net- work. Id. Lerner discloses a method of visually identifying speaking participants in a multi-participant event, such as an audio conference. Lerner describes a sound control module that routes sound between participants using a plurality of buffers. Lerner col. 5 ll. 27–30. To transmit sound, a router breaks a signal in a transmit buffer into packets that are routed to the participants by a server. Id. col. 5 ll. 44–54. To receive sound from remote participants, the sound control module includes a plurality of receive sound buffers. Id. col. 5 ll. 30–34. The identity of the par- ticipant associated with each packet is used to route the packet to the appropriate receive sound buffer. Id. col. 5 ll. 37–40. Case: 19-1151 Document: 80 Page: 7 Filed: 02/09/2021

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The Board instituted trial on all grounds and issued a final written decision concluding that Apple had demon- strated that claims 1 and 2 would have been obvious but failed to demonstrate by a preponderance of evidence that claims 3–8 would have been obvious. The Board first con- strued “list” as recited in claim 1. The Board agreed with Uniloc that the “list” must record the connectivity status of more than one node, reasoning that to conclude otherwise would ignore the recitation of recording a connectivity sta- tus for each of the nodes. Decision, 2018 WL 2355988, at *6. Applying its construction, the Board determined that Vuori’s use of a buddy list and tracking of presence information of users discloses the claimed “transmitting a signal to a client including a list of the recorded connectiv- ity status for each of the nodes in the sub-set corresponding to the client.” Id. at *12. With respect to claim 3—as well as claims 4–8, which depend directly or indirectly from claim 3—the Board re- jected Apple’s argument that both Vuori and Malik disclose “controlling a method of generating the instant voice mes- sage based upon the connectivity status of said one or more recipient.” Id. at *16. Specifically, the Board found that both Vuori and Malik describe different methods for send- ing messages based on connectivity status but fail to dis- close different modes of generating messages, as required by claim 3. Id. Finally, with respect to claim 8, the Board noted that Apple had failed to demonstrate unpatentability based on claim 8’s dependency from claim 3. Id. at *17. Nonethe- less, the Board concluded that Apple had not demonstrated that Lerner discloses “buffering each of a plurality of suc- cessive portions of the instant voice as the instant voice message is recorded.” Id. Specifically, the Board found that Lerner’s receive sound buffers buffer packets as they are received by the recipient, not as the messages are rec- orded, id. at *18, and noted that Apple’s petition did not rely on any other buffer in Lerner as disclosing the Case: 19-1151 Document: 80 Page: 8 Filed: 02/09/2021

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buffering limitation, id. The Board denied requests for re- hearing from both parties. See Apple Inc. v. Uniloc Luxem- bourg S.A., No. IPR2017-00222, 2018 WL 4263073 (P.T.A.B. Sep. 6, 2018); Apple Inc. v. Uniloc Luxembourg S.A., No. IPR2017-00222, 2018 WL 4279645 (P.T.A.B. Sep. 6, 2018). Apple appealed, and Uniloc cross-appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A). DISCUSSION Obviousness is a question of law that “lends itself to several basic factual inquiries,” Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966) (citing Great Atl. & Pac. Tea Co. v. Supermarket Equip. Corp., 340 U.S. 147, 155 (1950)), in- cluding the scope and content of the prior art, the level of ordinary skill in the art, differences between the prior art and the claimed invention, and any relevant secondary con- siderations. Id. “We review the PTAB’s factual findings for substantial evidence and its legal conclusions de novo.” Redline Detection, LLC v. Star Envirotech, Inc., 811 F.3d 435, 449 (Fed. Cir. 2015) (citing Rambus Inc. v. Rea, 731 F.3d 1248, 1251 (Fed. Cir. 2013)). A finding is supported by substantial evidence if a reasonable mind might accept the evidence as adequate to support the finding. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). “If two ‘in- consistent conclusions may reasonably be drawn from the evidence in record, the PTAB’s decision to favor one conclu- sion over the other is the epitome of a decision that must be sustained upon review for substantial evidence.’” Elbit Sys. of Am., LLC v. Thales Visionix, Inc., 881 F.3d 1354, 1356 (Fed. Cir. 2018) (quoting In re Cree, Inc., 818 F.3d 694, 701 (Fed. Cir. 2016) (internal brackets omitted)). I. APPLE’S APPEAL On appeal, Apple argues that the Board erred in im- plicitly construing claim 3 as requiring two modes of gen- erating a voice message. Under a correct interpretation in Case: 19-1151 Document: 80 Page: 9 Filed: 02/09/2021

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which claim 3 requires only one method of generating a voice message based on connectivity status, according to Apple, Malik discloses the additional limitation of claim 3. However, even under the Board’s construction, Apple ar- gues that the Board’s conclusion that Malik fails to disclose the controlling limitation was unsupported by substantial evidence. Apple also argues that the Board’s conclusion that Ler- ner fails to disclose the buffering limitation of claim 8 was unsupported by substantial evidence. We address Apple’s arguments in turn. 1. Claim 3 Claim 3 depends from claim 1 and further recites “con- trolling a method of generating the instant voice message based upon the connectivity status of said one or more re- cipient” (the “controlling limitation”). Apple argues that, although neither party sought construction of any element of claim 3 and the Board provided none, the Board in its obviousness analysis implicitly construed claim 3 “as re- quiring two modes of generating instant voice messages.” Appellants’ Br. 35. According to Apple, claim 3 does not require selecting a method of generating an instant voice message from more than one method, but requires only controlling “one method of generating the instant voice message based on connectivity status.” Id. at 37. Apple offers two explanations why Malik satisfies its proposed interpretation: first, because it discloses detect- ing whether the recipient is available before generating a voice recording, id. at 39–40 (citing Malik Fig. 4); second, because, in some embodiments, a user is given a choice whether to generate a voice message if the recipient is un- available, while in other embodiments a voice message is generated regardless of the availability of the recipient. Id. at 41 (citing Malik ¶ 31). Even under the Board’s alleged construction, Apple argues, Malik discloses the controlling limitation because it describes delivering messages Case: 19-1151 Document: 80 Page: 10 Filed: 02/09/2021

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immediately if the recipient is available, while storing and delivering messages later if the recipient is unavailable. Id. at 42. As an initial matter, we disagree with Apple that the Board engaged in implicit construction of claim 3 in its ob- viousness analysis. Rather, the Board made factual find- ings regarding the content of Malik’s disclosure, and considered whether that content satisfied the claims. Ap- ple points to a single statement as evidence of the Board’s alleged implicit construction in which the Board found that Malik does not “control[] the ‘generating’ of the voice in- stant message because it is always generated in the same manner—recording mode.” Decision, 2018 WL 2355988, at *16. Rather than engaging in implicit claim construction, the Board merely made a factual finding that, when Malik describes generating a voice instant message, the message is always generated by recording and storing the voice of the sender, akin to the recording mode of the ’723 patent. Whether asserted prior art discloses the claim limita- tions of a challenged patent is a factual question reviewed for substantial evidence, see Elmer v. ICC Fabricating, Inc., 67 F.3d 1571, 1575 (Fed. Cir. 1995), and we reject Apple’s attempt to bootstrap its argument into one of claim con- struction in order to receive de novo review. See also Gra- ham, 383 U.S. at 17–18 (establishing the “basic factual inquiries” underlying obviousness, including “the scope and content of the prior art” and the “differences between the prior art and the claims at issue”). Accordingly, we con- sider only whether the Board’s determination that Malik fails to disclose the controlling limitation was supported by substantial evidence. Apple offers three theories of how Malik discloses “con- trolling a method of generating the instant voice message based upon the connectivity status” of a recipient. First, in its petition, Apple argued that Malik discloses the control- ling limitation because “when a client is online and Case: 19-1151 Document: 80 Page: 11 Filed: 02/09/2021

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available, a client generates and sends messages in real time,” while “when the recipient is not present and/or is not available online VIMs are recorded.” J.A. 5032. The Board concluded that the cited portions of Malik describe “send- ing [messages], not generating them.” Decision, 2018 WL 2355988, at *16. We agree with the Board. Whether the message is de- livered immediately or at a later time, the message is gen- erated in the same manner—by a voice recording. See Malik ¶¶ 32–33 (“[I]n blocks 430-435, the VIM client 320 of the second user checks to see if the computing device of the VIM client 320 is capable of generating a voice recording.”); (“[I]f the second user accepts the VIM invitation, then the VIM client 320 of the second user starts a voice recorder.”); (“[T]he VIM client 320 of the second user generates a voice recording for the first user.”). Because the voice message is generated in the same manner regardless whether its delivery is immediate or delayed, the method of generation cannot be said to be “controlled” based on connectivity sta- tus. Apple suggests that, because Malik does not expressly state that a voice recording is generated in the same man- ner when the message is delivered immediately as when the message is stored and delivered later, Malik must dis- close some other manner of generating voice message when it is delivered in real time. Appellants’ Br. 44. To the ex- tent that Apple argues that Malik’s “real time” delivery in- herently discloses that the voice message is generated in a different manner, we disagree. Apple, holding the burden of persuasion, presented no evidence that real time mes- sage delivery requires the voice message to be generated in a manner other than voice recording—the only method dis- closed in Malik—and Malik provides no suggestion that generating the message by voice recording would be inade- quate or incompatible with real time message delivery. “The mere fact that a certain thing may result from a given set of circumstances is not sufficient [to establish Case: 19-1151 Document: 80 Page: 12 Filed: 02/09/2021

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inherency.]” In re Rijckaert, 9 F.3d 1531, 1534 (Fed. Cir. 1993) (quoting In re Oelrich, 666 F.2d 578, 581–82 (CCPA 1981)). Accordingly, based on the disclosure of Malik, we conclude that the Board’s finding that the messages are generated by voice recording in both cases was supported by substantial evidence. Second, Apple argues that Figure 4 of Malik (repro- duced below) discloses the controlling limitation because it discloses detecting whether the recipient is available before generating a voice recording. Appellant Br. 39–40.

We note that Apple did not advance this theory in its peti- tion, and it cannot be raised for the first time on appeal. See Wasica Finance GmbH v. Continental Automotive Sys., Inc., 853 F.3d 1272, 1286–87 (Fed. Cir. 2017). 1 In any

1 Apple did not explicitly reference Figure 4 of Malik in its original petition, nor did it make nearly as compre- hensive an argument regarding the disclosure of Figure 4 before the Board until it sought rehearing. See J.A. 5020– Case: 19-1151 Document: 80 Page: 13 Filed: 02/09/2021

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event, we disagree with Apple. The fact that the determi- nation of availability occurs before the generation of the voice message does not demonstrate that the method of generation is controlled by the connectivity status. In fact, because Figure 4 does not show any logical decision regard- ing generation at step 425—where availability is deter- mined—the determination of availability cannot be said to exert control over any aspect of generating the voice mes- sage. Further, Malik explains, in the portion cited by Ap- ple in its petition, that the only action in response to the determination in step 425 that the user is not present and/or available is that the “sending of the instant mes- sage” is not initiated. See Malik ¶ 32 (emphasis added). Accordingly, we disagree that Figure 4 demonstrates that the determination of connectivity status controls the method of generating the voice message, and we reject Ap- ple’s argument. Third, Apple points to the disclosure in ¶ 31 of Malik that, in other embodiments, a voice message is generated “regardless of the presence and/or availability” of the recip- ient. Appellants’ Br. 41 (quoting Malik ¶ 31). According to Apple, this demonstrates that, in the Figure 4 embodiment, “the voice instant message is generated based upon connec- tivity status.” Id. at 42. As above, Apple did not present this theory in its petition, and we consider this argument forfeited. But as above, we also disagree with Apple’s read- ing-through-negative-implication argument. Consistent with the Board’s finding, when read in the full context of Malik’s discussion of Figure 4, Malik describes only that the sending of the message is controlled by the connectivity

23. In its petition, Apple did point to a portion of the spec- ification in Malik describing in part the embodiment in Fig- ure 4; however, the discussion was limited to two sentences of Malik, which reference only blocks 425, 430, and 435. J.A. 5032. Case: 19-1151 Document: 80 Page: 14 Filed: 02/09/2021

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status of the receiver, not the generating of that message. Accordingly, we reject this argument as well and affirm the Board’s decision that Apple failed to demonstrate that claim 3 would have been obvious over the prior art. 2. Claim 8 Because we affirm the Board’s conclusion that Apple failed to demonstrate that Malik discloses the controlling limitation of claim 3 and Apple does not dispute the Board’s conclusion that Vuori fails to disclose the limitation, we af- firm the Board’s conclusion that Apple did not demonstrate that claim 8 would have been obvious based on claim 8’s dependency from claim 3. Accordingly, we need not ad- dress Apple’s argument that the Board erred in determin- ing that Lerner does not disclose the buffering limitation of claim 8. II. UNILOC’S CROSS-APPEAL In its cross-appeal, Uniloc argues that the Board erred in concluding that claims 1 and 2 would have been obvious over the prior art. Specifically, Uniloc argues that the Board’s determination that Vuori discloses “transmitting a signal to a client including a list of the recorded connectiv- ity status for each of the nodes in the sub-set corresponding to the client” as recited in claim 1 was unsupported by sub- stantial evidence. Uniloc makes two principal arguments. First, Uniloc argues that Vuori fails to disclose transmitting a single sig- nal that includes a list of connectivity statuses for multiple users. Instead, according to Uniloc, the SVM presence ser- vice of Vuori distributes presence information one value at a time, rather than including multiple values in a single signal. Referring to Figure 7 (reproduced below), Uniloc asserts that Vuori describes that SVM watcher 256 re- quests either “the current value of some SVM presentity’s presence information” or “notification from the SVM pres- ence service 248 of (future) changes in some SVM Case: 19-1151 Document: 80 Page: 15 Filed: 02/09/2021

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presentity’s presence information.” Cross-Appellant’s Br. 22 (quoting Vuori ¶ 44). In either case, according to Uniloc, status information is distributed for only a single client device, rather than a list of statuses for multiple us- ers.

Apple responds that the Board’s conclusion that the SVM presence service distributes presence information for multiple nodes in a single signal was supported by substan- tial evidence, and we agree. The Board considered the tes- timony of Uniloc’s expert, William Easttom, that the SVM presence service “distributes presence information . . . one value at a time,” but found that Uniloc’s evidence was con- tradicted by other aspects of Vuori’s disclosure. Decision, 2018 WL 2355988, at *14. Specifically, referring to Figure 10, the Board found that Vuori illustrates presence infor- mation comprising multiple “presence tuples,” each with a status marker. Id. Vuori explains that “presence infor- mation comprises an arbitrary number of elements,” and “[e]ach such element comprises a status marker.” Vuori ¶ 47. Based on this disclosure, the Board determined that it was not reasonable to restrict Vuori’s teaching to distrib- uting only one status value at a time, as suggested by Easttom. It was within the Board’s discretion to assess the credibility of Easttom’s testimony, see Yorkey v. Diab, 601 F.3d 1279, 1284 (Fed. Cir. 2010) (citing Velander v. Garner, 348 F.3d 1359, 1371 (Fed. Cir. 2003)), and, based on Vuori’s disclosure of the presence information as comprising mul- tiple status markers, we cannot conclude that it was error Case: 19-1151 Document: 80 Page: 16 Filed: 02/09/2021

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for the Board to determine that Vuori’s transmission of presence information includes status information for mul- tiple users. Second, Uniloc argues that the Board erred in deter- mining that Vuori discloses transmitting a signal to a cli- ent. Again referring to Figure 7, Uniloc argues that presence information is distributed only to SVM watcher 256, not to either of the “user agents” (i.e., clients, denoted as 276 and 278). Apple responds that the Board’s conclu- sion that a person of ordinary skill would understand that the presence information is transmitted to the user agents was supported by substantial evidence, relying on the tes- timony of its expert, Dr. Leonard Forys. Before the Board, Uniloc presented the same argu- ment, relying on Easttom’s declaration that “SVM watcher 256 is not a user-facing ‘client’” and, relying on the unidi- rectional arrows in Figure 7, that “presence information is not distributed to a ‘user agent.’” J.A. 3014 ¶ 29. Apple responded with Forys’s supplemental declaration that the SVM watcher is client-facing because (1) Vuori suggests that it is coupled to the user agent, and (2) the presence status must be distributed to a user agent because the sta- tus markers are interpretable by “programs or persons.” J.A.2335–37 ¶¶ 18–19, 21. After weighing the experts’ competing theories, the Board “credit[ed] Dr. Forys’s testi- mony as being more consistent with and supported by Vuori’s teachings.” Decision, 2018 WL 2355988, at *15. Specifically, the Board found that Forys’s testimony is con- sistent with Vuori’s disclosure that “a user agent is purely coupling between a principal and some core entity of the system,” such as SVM watcher 256, and we agree. Ultimately, Uniloc’s arguments on appeal amount to a request to reweigh the evidence presented to the Board. For example, Uniloc argues that “a more plausible inter- pretation” of Vuori’s statement that presence status is in- terpretable by “programs or persons” is that the SVM Case: 19-1151 Document: 80 Page: 17 Filed: 02/09/2021

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watcher enables an administrator, rather than a user, to access the status information. But our task is not to deter- mine which interpretation we find more plausible. “[I]t is not for us to second-guess the Board’s assessment of the evidence.” Velander, 348 F.3d at 1371. Rather, the only question before us is whether the conclusion adopted by the Board was supported by substantial evidence. Here, based on Vuori’s disclosure that the user agents are “coupl[ed]” to the SVM watcher and that the status must be reviewable by “persons,” as well as Forys’s testimony that a person having ordinary skill would understand that the status in- formation is transmitted to the user agents, we conclude that the Board’s finding that a skilled artisan would under- stand that presence information is transmitted to the user agents via the SVM watcher was supported by substantial evidence. Accordingly, we affirm the Board’s conclusion that claims 1 and 2 would have been obvious over the prior art. CONCLUSION We have considered the parties’ remaining arguments but find them unpersuasive. For the foregoing reasons, the decision of the Board is affirmed. AFFIRMED