Transtex Inc. v. Vidal

• Court: Court of Appeals for the Federal Circuit
• Decided: February 3, 2023
• Docket: 20-1140
• Status: Unpublished

Opinion

Case: 20-1140 Document: 101 Page: 1 Filed: 02/03/2023

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

TRANSTEX INC., FKA TRANSTEX COMPOSITE INC., Appellant

v.

KATHERINE K. VIDAL, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE UNITED STATES PATENT AND TRADEMARK OFFICE, Intervenor ______________________

2020-1140 ______________________

Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. IPR2018- 00737. ______________________

Decided: February 3, 2023 ______________________

JOHN CARACAPPA, Steptoe & Johnson, LLP, Washing- ton, DC, for appellant. Also represented by SCOTT RICHEY, JOHN WILLIAM TOTH; ROBERT KAPPERS, Chicago, IL.

MAI-TRANG DUC DANG, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, for Case: 20-1140 Document: 101 Page: 2 Filed: 02/03/2023

intervenor. Also represented by PETER J. AYERS, THOMAS W. KRAUSE, AMY J. NELSON, FARHEENA YASMEEN RASHEED, MARY BETH WALKER. ______________________

Before PROST 1, SCHALL, and REYNA, Circuit Judges. Opinion for the court filed by Circuit Judge PROST. Dissenting opinion filed by Circuit Judge SCHALL. PROST, Circuit Judge. The Patent Trial and Appeal Board (“Board”) found claims 1–9, 19, and 20 of U.S. Patent No. 7,942,471 (“the ’471 patent”) unpatentable as obvious. WABCO Hold- ings Inc. v. Transtex Composites Inc., No. IPR2018-00737, Paper 30, 2019 WL 4677106 (P.T.A.B. Sept. 24, 2019) (“’471 Final Written Decision”). Patent owner, Transtex, Inc. (“Transtex”), appeals. 2 We affirm for the reasons set forth below. BACKGROUND WABCO Holdings, Inc. and Laydon Composites Ltd. (collectively, “WABCO”) petitioned for inter partes review of claims 1–9, 19, and 20 of the ’471 patent and claims 1–20 of U.S. Patent No. 8,449,017 (“the ’017 patent”). The Board found all challenged claims of the ’471 patent and claims 1, 5–11, and 15–19 of the ’017 patent unpatentable as obvious in light of Layfield and Rinard. 3 ’471 Final Written Deci- sion, 2019 WL 4677106, at *14; WABCO Holdings Inc. v.

1 Circuit Judge Sharon Prost vacated the position of Chief Judge on May 21, 2021. 2 Transtex was formerly known as Transtex Compo- site Inc., so the Board’s final written decision caption re- flects that name. 3 U.S. Patent No. 7,578,541 (“Layfield”); U.S. Patent No. 5,280,990 (“Rinard”). Case: 20-1140 Document: 101 Page: 3 Filed: 02/03/2023

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Transtex Composites Inc., No. IPR2018-01319, Paper 25, at 65 (Jan. 10, 2020) (“’017 Final Written Decision”). Transtex appealed both Board decisions. Only the ’471 Final Written Decision is at issue here, but a brief discussion of the com- panion case is warranted given the similarities between the challenged claims and the issues raised. 4 I As Transtex notes, the ’017 and ’471 patents are re- lated and have substantially similar specifications. Appel- lant’s Br. 1 n.1. Both patents generally relate to aerodynamic trailer skirts. And their specifications ex- plain that trailer skirts are used to “reduce the aerody- namic air drag and improve fuel efficiency” but are typically prone to damage (breaking and bending such that they no longer maintain an aerodynamic shape) when they encounter foreign objects in the road. ’471 patent col. 1 ll. 20–45; ’017 patent col. 1 ll. 30–55. Both patents state that “[t]here is a need in the art for . . . a resilient skirt assem- bly.” ’471 patent col. 1 ll. 47–49; ’017 patent col. 1 ll. 57–59. And they describe “a resilient skirt assembly” and “a resil- ient strut adapted to secure a skirt panel to a road trailer.” ’471 patent col. 2 ll. 3–4, col. 2 ll. 19–20; ’017 patent col. 2 ll. 5–6, col. 2 ll. 20–21. The representative claim at issue in the ’017 patent ap- peal was: 1. A resilient strut adapted to secure an aerody- namic skirt to a trailer, the aerodynamic skirt

4 In the ’017 Final Written Decision, the Board also found that WABCO had not shown that claims 2–4, 12–14, and 20 of the ’017 patent, which claimed resilient struts of a particular shape, were unpatentable as obvious. WABCO cross-appealed, and we affirmed the Board’s determination on those claims. No shape-specific limitations are at issue here, so we don’t discuss that aspect of the related case. Case: 20-1140 Document: 101 Page: 4 Filed: 02/03/2023

being adapted to be substantially longitudinally mounted to the trailer, the aerodynamic skirt comprising a skirt panel in- cluding a front portion and a rear portion, the front portion being adapted to be mounted toward a for- ward portion of the trailer and the rear portion be- ing adapted to be mounted toward a rear portion of the trailer in a configuration reducing air drag about the trailer, the skirt panel being adapted to move away from the configuration reducing air drag about the trailer when contacting a foreign ob- ject and to recover the configuration reducing air drag about the trailer thereafter, the resilient strut being adapted to sustain an elas- tic deformation when a load is applied to the resili- ent strut when the skirt panel moves away from the configuration reducing air drag about the trailer and to self-recover the resilient strut original shape when the load is removed, the resilient strut includ- ing a longitudinal shape variation adapted to change a mechanical strength of the resilient strut and influence a stiffness of the resilient strut. Transtex Inc. v. Laydon Composites Ltd., 848 F. App’x 901, 903 (Fed. Cir. 2021) (“Transtex I”) (emphasis in original) (quoting ’017 patent claim 1). In Transtex I, Transtex challenged the Board’s conclu- sions related to the resilient strut limitation. Specifically, it argued that the Board’s motivation-to-combine and rea- sonable-expectation-of-success findings were erroneous. We rejected both arguments and affirmed the Board’s ob- viousness determination. 5 We concluded that the Board’s

5 The discordant timing of our decisions here and in Transtex I is a product of the two Final Written Decisions’ differing temporal relationships with Arthrex. We rejected Case: 20-1140 Document: 101 Page: 5 Filed: 02/03/2023

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motivation-to-combine finding “was more than an imper- missible conclusory assertion” and that it was supported by substantial evidence in the form of Mr. Tres’s expert testi- mony. Transtex I, 848 F. App’x at 907. As for reasonable expectation of success, we found that “Mr. Tres’s declara- tions confirm that the expectation of success here is rea- sonable in view of the teachings of Layfield and Rinard” and that the Board’s decision had adequately set out the reasons for its conclusion. Id. at 908. This appeal is also centered on the Board’s conclusions about a resilient strut limitation. The representative claim of the ’471 patent at issue here is:

Transtex’s Appointments Clause challenge in the ’017 pa- tent appeal because the Board’s decision issued after our then-binding decision in Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019). Transtex I, 848 F. App’x at 905 n.3. The ’471 Final Written Decision issued before our Arthrex decision, so this case was initially re- manded for proceedings consistent with that decision. Or- der (Feb. 5, 2021), ECF No. 64. After the Supreme Court’s decision in United States v. Arthrex, Inc., 141 S. Ct. 1970 (2021), the mandate was recalled, and the case was re- manded for the limited purpose of seeking Director review. Order (Dec. 30, 2021), ECF No. 82. WABCO withdrew from the appeal before Director review was denied. Order (Feb. 18, 2022) ECF No. 85. When the appeal was rein- stated, supplemental briefing was ordered and the United States Patent and Trademark Office (“PTO”) was permit- ted to respond to all issues raised in Transtex’s appeal (prior to WABCO’s withdrawal the PTO’s brief had ad- dressed only the Appointments Clause issue). Order (July 26, 2022), ECF No. 93. Transtex is no longer pursuing an Appointments Clause challenge. Appellant’s Supp. Reply Br. 2 n.3. Case: 20-1140 Document: 101 Page: 6 Filed: 02/03/2023

1. An aerodynamic skirt adapted to be substan- tially longitudinally mounted to a trailer, the aero- dynamic skirt comprising: (a) a skirt panel including a front portion and a rear portion, the front portion being adapted to be mounted toward a forward portion of the trailer and the rear portion being adapted to be mounted toward a rear portion of the trailer in an aerodynamic configuration of the skirt, the front portion having a front height and the rear portion having a rear height, the front height being shorter than the rear height, the skirt panel being adapted to move away from the aerodynamic configuration of the skirt when contacting a foreign object and to recover to the aerodynamic configuration of the skirt thereaf- ter, (b) the skirt panel being resiliently secured to the trailer with a plurality of resilient struts, each resilient strut comprising (i) an intermediate portion; (ii) a trailer connecting portion at a first end thereof; and (iii) a skirt connecting portion at a second end thereof, (iv) the resilient strut being adapted to sus- tain an elastic deformation when a load is applied thereon when the skirt panel moves away from the aerodynamic configuration of the skirt both proximally toward a center of the trailer and distally away from the center of the trailer, and to self-recover an original shape when the skirt panel returns to the aerodynamic configuration of the skirt when the load is removed. Case: 20-1140 Document: 101 Page: 7 Filed: 02/03/2023

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’471 patent claim 1 (emphasis added). The limitations at issue in both appeals are similar. Both struts are adapted to sustain an elastic deformation— the only difference is whether they can do so when the skirt panel moves away from its configuration in general (the ’017 patent’s resilient strut limitation) or when it moves away from its configuration bidirectionally (towards the center and away from it) (the ’471 patent’s resilient strut limitation). The similarities between appeals don’t end there. As in Transtex I, Transtex argues that the Board’s motivation- to-combine and reasonable-expectation-of-success findings related to the resilient strut limitation were erroneous here as well. And those are the only aspects of the Board’s deci- sion that Transtex challenges. II In the ’471 Final Written Decision, the Board first dis- cussed WABCO’s anticipation ground. It found that Lay- field taught all limitations of the representative claim aside from the resilient strut limitation. ’471 Final Written Decision, 2019 WL 4677106, at *5–6. For the resilient struts, the Board concluded that Layfield did not expressly teach a flexible strut or expressly “discuss the desirability of strut flexibility.” Id. at *6. Further, in the context of its inherency analysis, the Board concluded that struts made of the materials disclosed in Layfield without any consid- eration of their construction (including the strut’s thick- ness) would not necessarily sustain the elastic deformation the claims require. Id. at *7. Transtex does not challenge these aspects of the Board’s decision. Having already concluded that Layfield taught the other elements, the Board addressed the combination of Ri- nard and Layfield only as it related to the resilient strut limitation. The Board rejected Transtex’s arguments on lack of motivation to combine and absence of reasonable Case: 20-1140 Document: 101 Page: 8 Filed: 02/03/2023

expectation of success and concluded that “[WABCO] ha[d] demonstrated sufficiently that one of ordinary skill in the art would have had reason with rational underpinning to combine the teachings of Rinard and Layfield in the man- ner proposed by [WABCO] with a reasonable expectation of success.” Id. at *13. Transtex timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A). DISCUSSION “We review the Board’s ultimate obviousness determi- nation de novo and underlying factual findings for substan- tial evidence.” Celgene Corp. v. Peter, 931 F.3d 1342, 1349 (Fed. Cir. 2019). The Board’s findings on reasonable expec- tation of success and motivation to combine are factual. See Arctic Cat Inc. v. Bombardier Recreational Prods. Inc., 876 F.3d 1350, 1359, 1361 (Fed. Cir. 2017). “A finding is supported by substantial evidence if a reasonable mind might accept the evidence as adequate to support the find- ing.” Shoes by Firebug LLC v. Stride Rite Child.’s Grp., LLC, 962 F.3d 1362, 1369 (Fed. Cir. 2020). Even where the record could support two conclusions, substantial evidence supports either finding. In re Jolley, 308 F.3d 1317, 1329 (Fed. Cir. 2002). Transtex argues, as it did in Transtex I, that the Board’s findings on motivation to combine and reasonable expectation of success were erroneous. We address each challenge in turn. I Transtex argues that substantial evidence does not support the Board’s motivation-to-combine finding because the testimony offered by WABCO’s expert, Mr. Tres, was too conclusory to support it. Appellant’s Br. 29–31. Transtex also contends that the Board did not adequately explain the basis for its motivation conclusion in any event. Appellant’s Br. 32–33. This is essentially the same argu- ment—about the Board’s finding regarding the same pieces Case: 20-1140 Document: 101 Page: 9 Filed: 02/03/2023

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of prior art—that Transtex advanced in Transtex I. Transtex I, 848 F. App’x at 906. We do not find it persua- sive here either. The Board sufficiently explained its reasons for finding a motivation to combine Layfield with Rinard’s resilient support elements. Before the Board specifically discussed the resilient strut limitation, it had already concluded that “Layfield explicitly teaches flexibility of the skirt panel.” ’471 Final Written Decision, 2019 WL 4677106, at *5. And it had described Rinard as “explain[ing] that [its] air scoops, including vertical support elements 76, can be made ‘from a resilient material’ . . . allow[ing] the air scoop ‘to resume its illustrated configuration upon removal of contact’ with another structure, such as a loading dock.” Id. at *4 (citing Rinard col. 10 ll. 43–50). Ultimately, the Board concluded that “[WABCO] ha[d] shown that one of skill in the art would have had a reason with rational un- derpinning to look to other similar types of trailer compo- nents that are also flexible to make further improvements to Layfield’s design.” Id. at *12. In doing so, the Board also explained why it was rejecting Transtex’s arguments: be- cause they either sought to explain why Rinard’s support elements alone did not teach the resilient strut instead of addressing the combination or were based on the previ- ously rejected contention that Layfield did not teach a flex- ible skirt panel. Substantial evidence supports the Board’s conclusion. Mr. Tres testified that a person of ordinary skill in the art (“POSA”) would have been “motivated to implement Ri- nard’s teachings concerning the resilient arcuate element 72 and support elements 76 in the Layfield trailer fairings to provide a skirt panel that recovers its aerodynamic con- figuration after moving away from that position when con- tacting a foreign object and struts that are ‘resilient’ as recited in the challenged claims of the ’471 patent.” J.A. 1374 ¶ 148. And this conclusion has a sufficient basis. For example, Mr. Tres based his opinion on the fact that Case: 20-1140 Document: 101 Page: 10 Filed: 02/03/2023

“Rinard and Layfield are both concerned with providing flexible fairing components that can be elastically de- formed” and that a POSA would have recognized that Lay- field’s resilient skirt would benefit from a resilient strut. J.A. 1374 ¶ 145–46. In sum, the Board’s motivation-to-combine finding was not erroneous: it is supported by substantial evidence. The dissent agrees with this conclusion and would not disturb the Board’s motivation-to-combine finding on appeal ei- ther. II As for reasonable expectation of success, Transtex ar- gues that the Board improperly shifted the burden by re- quiring that Transtex show no reasonable expectation of success. Appellant’s Br. 36–38. Additionally, Transtex ar- gues that the Board’s conclusion is erroneous because the Board never explained how the proposed combination would work. Id. at 39–41. Neither argument is persua- sive. 6 First, the Board did not improperly shift the burden to Transtex. The Board simply noted that one of Transtex’s reasonable-expectation-of-success arguments only ad- dressed whether Rinard’s resilient components alone would move away from the trailer without addressing why the combination was subject to the same argument. ’471 Final Written Decision, 2019 WL 4677106, at *11. Second, the Board explained its reasons for finding rea- sonable expectation of success. And substantial evidence supports that finding. This is where our conclusions and

6 Because we reject Transtex’s arguments, we do not need to address the PTO’s contention that Transtex is col- laterally estopped from advancing them based on our deci- sion in Transtex I. Case: 20-1140 Document: 101 Page: 11 Filed: 02/03/2023

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the dissent’s part ways. The dissent would reverse on this ground, concluding that no explanation by the Board would be sufficient in any event because the record lacks substan- tial evidence of reasonable expectation of success. We, on the other hand, conclude, as we did in Transtex I, that Mr. Tres’s declarations in view of Layfield and Rinard provided a sufficient and proper basis for the Board’s conclusion. “[T]he expectation of success need only be reasonable, not absolute.” See Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1364 (Fed. Cir. 2007). So the Board did not need to conclude that a POSA would be certain that the strut would sustain an elastic deformation; it just needed to conclude that it would have been reasonable for a POSA to expect that result. The Board explained that it agreed with WABCO’s argument, supported by expert testimony, that “Rinard provides an obvious solution to the problem of aer- odynamic fairings mounted to trailers encountering exter- nal objects that can damage the aerodynamic performance of the fairing, and that applying this solution to the Lay- field struts would yield the predictable result of allowing the Layfield struts 58 to absorb greater impacts without having to be repaired or replaced.” ’471 Final Written De- cision, 2019 WL 4677106, at *11 (cleaned up). That was sufficient. Substantial evidence supported that conclusion. Ri- nard’s resilient vertical support elements, Layfield’s struts and flexible skirt panel, and Mr. Tres’s testimony that re- lies on both references and his background knowledge in mechanics and plastics all provided substantial evidence for the Board’s finding. And because there are factual and rational underpinnings to support Mr. Tres’s opinions, the Board was within its discretion to rely on them to reach its conclusion. See Acoustic Tech., Inc. v. Itron Networked Sols., Inc., 949 F.3d 1366, 1376 (Fed. Cir. 2020). Additionally, this is a situation where the evidence of motivation to combine—evidence that everyone agrees Case: 20-1140 Document: 101 Page: 12 Filed: 02/03/2023

meets the substantial-evidence threshold—and the evi- dence of reasonable expectation of success significantly overlap. Likewise, the Board’s discussion of both issues overlapped. Mr. Tres’s declaration provided that a POSA would have “recognized the benefit” of the combination so that the struts “may deform either inwardly or outwardly.” J.A. 1374 ¶ 147; see also J.A. 1373 ¶ 145 (“Rinard and Lay- field are both concerned with providing flexible fairing components that can be elastically deformed . . . .”). And the Board found a motivation to look to flexible trailer com- ponents specifically. ’471 Final Written Decision, 2019 WL 4677106, at *12. Thus, it was reasonable for the Board to look to this same evidence and conclude that a POSA would have reasonably expected the resiliency benefit that moti- vated him to combine the references in the first instance. The dissent would conclude that, notwithstanding that substantial evidence supports a POSA’s motivation to com- bine the references specifically because they were flexi- ble—the correct conclusion, everyone agrees—nonetheless, it does not support a POSA’s reasonable expectation that the resulting combination would be flexible. This record, devoid of any indication that this is an unpredictable art, does not support this distinction. “[D]emonstrat[ing] a mo- tivation to combine references does not necessarily imply that the challenger has also met its burden of showing a reasonable expectation of success in achieving a claimed method of treatment.” Eli Lilly & Co. v. Teva Pharms. Int’l GmbH, 8 F.4th 1331, 1344 (Fed. Cir. 2021) (emphasis added). But in some instances, a POSA will be motivated to combine familiar elements for the same reasons she would expect them to yield predictable results. This is one such instance. Finally, the slight differences between the claim limi- tation at issue here and the claim limitation at issue in our previous decision do not support the dissent’s inconsistent outcome. In Transtex I we concluded that “Mr. Tres’s dec- larations confirm that the expectation of success here is Case: 20-1140 Document: 101 Page: 13 Filed: 02/03/2023

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reasonable in view of the teachings of Layfield and Rinard.” 848 F. App’x at 908. In contrast, here the dissent would rest its reversal on its conclusion that a comparable decla- ration was too conclusory for the Board to have properly relied on it. Because both declarations are sufficient, there is no basis to reach a different conclusion here than we did in Transtex I. CONCLUSION We have considered Transtex’s other arguments and find them unpersuasive. Since substantial evidence sup- ports the Board’s motivation-to-combine and reasonable- expectation-of-success findings, we affirm the Board’s de- termination that claims 1–9, 19, and 20 of the ’471 patent are unpatentable as obvious. AFFIRMED COSTS No costs. Case: 20-1140 Document: 101 Page: 14 Filed: 02/03/2023

United States Court of Appeals for the Federal Circuit ______________________

KATHERINE K. VIDAL, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE UNITED STATES PATENT AND TRADEMARK OFFICE, Intervenor ______________________

Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. IPR2018- 00737. ______________________

SCHALL, Circuit Judge, dissenting. The majority affirms the Board’s obviousness determi- nation. It does so because it concludes that substantial ev- idence supports the Board’s findings with respect to motivation to combine and reasonable expectation of suc- cess. While I agree with the majority on the first point, for the reasons stated below, I part company with it on the sec- ond point. Case: 20-1140 Document: 101 Page: 15 Filed: 02/03/2023

The challenged claims of the ’471 patent, unlike the claims of the ’017 patent at issue in Transtex I, require that the resilient strut of the trailer skirt be “adapted to sustain an elastic deformation when a load is applied thereon when the skirt panel moves away from the aerodynamic configu- ration of the skirt both proximally toward a center of the trailer and distally away from the center of the trailer” and then “self-recover.” ’471 patent, Reexam. Cert. col. 1 ll. 25– 52 (emphases added). 1 In my view, the Board did not ex- plain how the combination of Layfield and Rinard would have reasonably been expected to achieve this claimed fea- ture. Nor do I see anything in Mr. Tres’s testimony that provides substantial evidence that would support such a finding. Mr. Tres’s opinions regarding reasonable likeli- hood of success merely paraphrase the claim language and/or depend on WABCO’s argument that Layfield alone teaches a resilient strut, which argument the Board ex- pressly rejected. See J.A. 1374, ¶ 147; J.A. 1374–75, ¶ 149; J.A. 1381, ¶ 164; TQ Delta, LLC v. CISCO Sys., Inc., 942 F.3d 1352, 1358 (Fed. Cir. 2019) (“Conclusory expert testi- mony does not qualify as substantial evidence.”). The most pertinent testimony of Mr. Tres states: In my opinion, a skilled artisan would have recog- nized the benefit of constructing the Layfield struts 58 from a “resilient material” as taught by Rinard so that the Layfield struts 58 may deform either in- wardly or outwardly in response to a load being ap- plied against them, such as, when encountering an

1 The requirement that the resilient strut permit movement of the skirt panel “both proximally toward a cen- ter of the trailer and distally away from the center of the trailer” was added during ex parte reexamination proceed- ings of the ’471 patent. It was the addition of this claim language that led the examiner to conclude that the claims were patentable over the prior art of record, which included Layfield and Rinard. J.A. 1189–90. Case: 20-1140 Document: 101 Page: 16 Filed: 02/03/2023

external structure like a loading dock and to return to their original position supporting the panels in an aerodynamic configuration once the load caused by the contact with external structure is removed. J.A. 1374 ¶ 147. This testimony, provided in connection with motivation to combine, supports that one of skill in the art would have appreciated that a Layfield strut, if made from Rinard’s resilient material, would have the abil- ity to collapse and recover. See also J.A. 1372–74, ¶¶ 143– 46; J.A. 1374, ¶ 148; J.A. 1375, ¶ 150. I do not believe, how- ever, that this testimony constitutes substantial evidence that one of skill in the art would have had a reasonable likelihood of success in combining Layfield and Rinard to achieve a strut that would be adapted to permit movement of a trailer skirt “distally away from the center of the trailer” and then “self-recover.” Thus, and because I would reject the Director’s argu- ment that Transtex is collaterally estopped from pursuing its appeal in view of Transtex I, I would conclude that the Board committed reversible error in finding that a skilled artisan would have had a reasonable expectation of success in achieving the claimed invention. 2 I therefore respect- fully dissent.

2 Collateral estoppel is not limited to situations where patent claims are identical but instead “requires that the issues of patentability be identical.” Google LLC v. Hammond Dev. Int’l, Inc., 54 F.4th 1377, 1381 (Fed. Cir. 2022) (concluding that collateral estoppel applied where identical issues of patentability were presented). Where, as here, there are differences between the unadjudicated patent claims and adjudicated patent claims that materi- ally alter the question of invalidity, collateral estoppel does not apply. See id.; see also Ohio Willow Wood Co. v. Alps South, LLC, 735 F.3d 1333, 1342 (Fed. Cir. 2013).