Case: 23-1076   Document: 41    Page: 1    Filed: 05/29/2024




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

           IN RE: EXPRESS MOBILE, INC.,
                       Appellant
                ______________________

                       2023-1076
                 ______________________

     Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. 90/014,615.
                   ______________________

                 Decided: May 29, 2024
                 ______________________

    DAVID ALBERTI, Kramer Alberti Lim & Tonkovich LLP,
 Burlingame, CA, argued for appellant. Also represented by
 JAMES BARABAS, ROBERT KRAMER, SAL LIM; KENNETH J.
 WEATHERWAX, Lowenstein & Weatherwax LLP, Santa
 Monica, CA.

    PETER JOHN SAWERT, Office of the Solicitor, United
 States Patent and Trademark Office, Alexandria, VA, ar-
 gued for appellee Katherine K. Vidal. Also represented by
 AMY J. NELSON, FARHEENA YASMEEN RASHEED, KEVIN
 RICHARDS.
                  ______________________

     Before LOURIE, PROST, and STARK, Circuit Judges.
 STARK, Circuit Judge.
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 2                                 IN RE: EXPRESS MOBILE, INC.




     Express Mobile, Inc. (“Express Mobile”), owner of now-
 expired 

 (“’397 patent”), appeals
 an ex parte reexamination decision by the Patent Trial and
 Appeal Board (“Board”), sustaining an examiner’s rejection
 of claim 1 for obviousness. Express Mobile concedes the
 Board’s stated construction of “substantially contempora-
 neous” is correct but asserts on appeal that the Board erred
 in its application of this construction. We conclude that
 Express Mobile’s issue actually constitutes a disagreement
 with certain factual findings, all of which are supported by
 substantial evidence. Accordingly, we affirm.
                              I
                              A
     The ’397 patent, entitled “Browser Based Web Site
 Generation Tool and Run Time Engine,” relates to “design-
 ing and building a web page” using “a browser based build
 engine.” ’397 Patent Abstract. The patent has a filing date
 of December 2, 1999 and expired before the ex parte reex-
 amination at issue in this appeal.
     Claim 1, the only claim involved in this appeal, recites:
         A method to allow users to produce Internet
     websites on and for computers having a browser
     and a virtual machine capable of generating dis-
     plays, said method comprising:
         (a) presenting a viewable menu having a
         user selectable panel of settings describing
         elements on a website, said panel of set-
         tings being presented through a browser on
         a computer adapted to accept one or more
         of said selectable settings in said panel as
         inputs therefrom, and where at least one of
         said user selectable settings in said panel
         corresponds to commands to said virtual
         machine;
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 IN RE: EXPRESS MOBILE, INC.                                 3



         (b) generating a display in accordance with
         one or more user selected settings substan-
         tially contemporaneously with the selection
         thereof,
         (c) storing information representative of
         said one or more user selected settings in a
         database;
         (d) generating a website at least in part by
         retrieving said information representative
         of said one or more user selected settings
         stored in said database; and
         (e) building one or more web pages to gen-
         erate said website from at least a portion of
         said database and at least one run time file,
         where said at least one run time file utilizes
         information stored in said database to gen-
         erate virtual machine commands for the
         display of at least a portion of said one or
         more web pages.
 ’397 patent cl. 1 (emphasis added). The patent discloses
 that, in one embodiment, “[a] browser based build engine
 is provided that includes a browser based interface.” 

.     This browser-based interface provides a
 “WYSIWYG (what you see is what you get)” process for
 building a web page, by which “the web designer [can]
 work[] directly on and with the final web page.” 

 at 2:34-
 37.
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 4                                IN RE: EXPRESS MOBILE, INC.




     Figure 37, reproduced below, shows an example of a
 browser-based “user interface presented by the build tool,”
 including “panel 400,” through which a user can change
 various attributes of the displayed interface objects (e.g.,
 textbox, image). 

 at Fig. 37, 10:19-21.




 In this exemplary embodiment, a user can select an inter-
 face object (e.g., textbox or image) shown within the build
 frame 500 and change an attribute (e.g., size) using the as-
 sociated panel object (e.g., by selecting an item in a drop-
 down list) within panel 400. See 

. Any
 change made to the interface object “become[s] the current
 setting with the result immediately processed by the build
 engine 352 and displayed in the build frame.” 

 at 10:45-
 46. The patent explains that conventional tools were not
 browser-based, and thus they could “offer only a crude pre-
 view capability of what a real web page will look like.” 

.
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 IN RE: EXPRESS MOBILE, INC.                               5



                               B
     VDM ’316 1 is prior art to the ’397 patent and discloses
 techniques for “allow[ing] a user to create a ‘diary.’” VDM
 ’316 at 2:2-11. In VDM ’316, a “diary owner can edit exist-
 ing diary content and layout by entering an edit mode.” 

.




     Figure 4(a), reproduced above, illustrates “exemplary
 diary page 400 [that] is being viewed with browser 110,”
 where “diary applet 112 has popped up a diary navigator
 bar window 402.” 

. “The diary owner can
 change properties of a content object on a diary page.” 

. One method of VDM ’316 “enables embodi-
 ments such as a diary to display and manipulate contents
 within an HTML document and, at the same time, uses the
 browser as a vehicle to handle the actual display and diary
 owner input.” 

.
                               C
     On November 25, 2020, a third party petitioned the
 U.S. Patent and Trademark Office (“Patent Office”) for ex
 parte reexamination of claims 1-6, 8-15, 17, 19, 20, 23-25,
 35, and 37 of the ’397 patent. The Patent Office granted
 the petition and ultimately issued a final office action



     1   

.
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 6                                 IN RE: EXPRESS MOBILE, INC.




 confirming the patentability of claims 2-6, 8-15, 17, 19-20,
 23-25, 35, and 37 but rejecting claim 1 as obvious based on
 a combination of VDM ’316 and VDM ’362. 2 There are no
 disputes before us relating to VDM ’362.
     Pertinent to this appeal, the examiner stated that
 VDM ’316 “allows the contents [of the diary] to be edited
 and at the same time uses the browser as a vehicle to han-
 dle the actual display and diary owner input of the setting.”
 J.A. 61 (emphasis in original). Thus, the examiner con-
 cluded, VDM ’316 discloses limitation (b) of claim 1: “gen-
 erating a display in accordance with one or more user
 selected settings substantially contemporaneously with
 the selection thereof.” 

     Express Mobile appealed the examiner’s rejection of
 claim 1 to the Board. The Board sustained the rejection.
 Noting that the ’397 patent was involved in multiple law-
 suits, the Board adopted the construction that had been
 adopted in the Eastern District of Texas: “happening at the
 same period of time from a human perspective.” See J.A. 9
 (quoting J.A. 1812). Based on this construction, the Board
 agreed with the examiner that VDM ’316 disclosed limita-
 tion (b) of claim 1. In doing so, the Board expressly rejected
 Express Mobile’s contentions that (i) the display is only up-
 dated after activating an accept button, (ii) the display is
 only updated “eventually,” and (iii) sometimes no display is
 updated even when it should be. See J.A. 20-28. The Board
 added that its decision would remain the same even if it
 construed the disputed term to mean “occurring immedi-
 ately after,” the construction it was given in separate liti-
 gation in the Northern District of California. See J.A. 9
 (quoting J.A. 1826).




     2   

.
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 IN RE: EXPRESS MOBILE, INC.                                 7



     Express Mobile timely appealed the decision of the
 Board.      We have jurisdiction under 

(a)(4)(A).
                               II
      “We review the Board’s ultimate claim construction in
 a reexamination de novo.” In re CSB-Sys. Int’l, Inc., 

 (Fed. Cir. 2016) (citing Teva Pharmaceuti-
 cals USA, Inc. v. Sandoz, Inc., 

, 329-33 (2015)).
 When “a reexamination involves claims of an expired pa-
 tent, . . . the [Patent Office] applies the claim construction
 principles outlined by this court in Phillips v. AWH
 Corp., 

 (Fed. Cir. 2005).” In re Rambus, Inc.,
 

 (Fed. Cir. 2014). The Board’s subsidi-
 ary factual findings underlying obviousness are reviewed
 for substantial evidence, and any subsidiary factual find-
 ings underlying claim construction are reviewed for clear
 error. See In re Applied Materials, Inc., 

 (Fed. Cir. 2012); see also Network-1 Techs., Inc. v.
 Hewlett-Packard Co., 

, 1022 (Fed. Cir. 2020).
 What the prior art teaches is a question of fact. See In re
 Berg, 

 (Fed. Cir. 2003).
                               III
      The issue on appeal involves the claim term “substan-
 tially contemporaneously,” which appears in element (b) of
 claim 1 of the ’397 patent. Without objection from Express
 Mobile, the Board adopted a construction Express Mobile
 had proposed and a district court had adopted: “happening
 at the same period of time from a human perspective.” J.A.
 8-9 (“Appellant asks that we adopt the prior district court’s
 constructions for two terms: ‘setting’ and ‘substantially
 contemporaneously.’ . . . [W]e adopt the [prior] court’s con-
 struction.”).
    Express Mobile argues that the Board did not really
 apply this correct construction when it evaluated the prior
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 8                                  IN RE: EXPRESS MOBILE, INC.




 art. Specifically, in Express Mobile’s view, VDM ’316 dis-
 closes that a user’s selection will not be reflected in a dis-
 play until after an additional input from the user, such as
 clicking an “accept” button. This results in some percepti-
 ble delay, to a human being, between making a change to
 a setting and the display then showing that change. By
 nonetheless finding that VDM ’316 disclosed the “substan-
 tially contemporaneously” limitation, the Board, according
 to Express Mobile, effectively construed the claim term to
 mean “occurring an unclear time afterwards, including af-
 ter an additional user interaction (e.g., clicking an accept
 button).” Opening Br. at 27.
     We agree with the Board’s construction and disagree
 with Express Mobile that the Board failed to apply it.
                               A
     We reach the same claim construction conclusion as the
 Board, the Eastern District of Texas, and Express Mobile.
 That is, the correct construction of “substantially contem-
 poraneously” as used in the ’397 patent is “happening at
 the same period of time from a human perspective.”
      The ’397 patent repeatedly explains that any change
 made by the user is “immediately” displayed. See ’397 pa-
 tent at 10:37-41 (“Interactive fields 460 . . . can also be di-
 rectly changed by the user by typing into the field, with the
 result immediately . . . displayed in the build frame 500.”);
 id. at 10:44-47 (“The user can click on an item in the selec-
 tion list, which will become the current setting with the re-
 sult immediately . . . displayed in the build frame.”); id at
 10:49-52 (“One or more settings can be changed through a
 pop-up window, with the results immediately . . . displayed
 in the build frame 500.”). The patent further teaches that
 immediateness is measured from a human’s perspective,
 not a computer’s. See id. at 23:21-24 (“A polling loop is de-
 fined in the panel’s (panel 400) JavaScript that creates a
 near continuous, at least from a human perception point of
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 IN RE: EXPRESS MOBILE, INC.                                 9



 view, dynamic real time link, in order to monitor events oc-
 curring inside the build engine.”) (emphasis added).
     Thus, based on the intrinsic evidence, the correct con-
 struction of “substantially contemporaneously” in the ’397
 patent is “happening at the same period of time from a hu-
 man perspective.” See generally Seabed Geosolutions (US)
 Inc. v. Magseis FF LLC, 

 (Fed. Cir. 2021)
 (“[W]e still ‘give[] primacy’ to intrinsic evidence . . . .”).
                               B
      Contrary to Express Mobile’s insistence, the Board ap-
 propriately applied the correct construction of “substan-
 tially contemporaneously.” Express Mobile’s contention is
 based on its own interpretation of VDM ’316 as requiring
 additional user input before, after a perceptible delay, a
 user’s selection is reflected in the user’s display. This was
 not, however, the Board’s reading of the prior art reference
 – and “[w]hat the prior art discloses . . . [is a] fact ques-
 tion[] that we review for substantial evidence.” Intel Corp.
 v. PACT XPP Schweiz AG, 

 (Fed. Cir.
 2023). The Board’s understanding of the disclosures of
 VDM ’316 is supported by substantial evidence.
     Specifically, the Board relied on Figure 4(l) and the dis-
 closure in VDM ’316 that “‘[t]he method of FIG. 4(l) enables
 embodiments such as a diary to display and manipulate
 contents within an HTML document and, at the same time,
 uses the browser as a vehicle to handle the actual display
 and diary owner input.’” J.A. 22 (quoting VDM ’316 at
 13:3-7).
     Express Mobile counters by both challenging the
 Board’s reading of these portions of VDM ’316 and by point-
 ing to different portions of it. Even assuming, without de-
 ciding, that the record contains substantial evidence that
 could, in theory, have supported Express Mobile’s interpre-
 tation of the reference, the only issue before us is whether
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 10                                IN RE: EXPRESS MOBILE, INC.




 substantial evidence supports the Board’s reading. See
 Consolo v. Fed. Mar. Comm’n, 

 (1966)
 (“[T]he possibility of drawing two inconsistent conclusions
 from the evidence does not prevent an administrative
 agency’s finding from being supported by substantial evi-
 dence.”). It does, for the reasons explained above and be-
 low. Nonetheless, we briefly address Express Mobile’s
 counterarguments.
      Express Mobile contends that VDM ’316 does not use
 “at the same time” in the literal sense. Instead, Express
 Mobile would have us read “at the same time” as having no
 temporal significance and merely meaning “as well as” or
 “in addition to.” But there is nothing unreasonable, or un-
 supported, in the Board’s conclusion that a person of ordi-
 nary skill would understand “at the same time” to mean,
 literally, two things happening “at the same time.”
      In support of its contention, Express Mobile points to a
 statement in VDM ’316 that the diary page is “eventually
 regenerate[d],” VDM ’316, 13:22-25 (emphasis added), in-
 sisting that “eventually” is opposite of “immediately.”
 However, as the Board explained, this part of the reference
 may not be relating to the human perspective, and “[t]o be
 sure, from the computer’s perspective, there will be some
 delay in VDM ’316 after a button is selected while the ap-
 plet regenerates the HTML and sends the regenerated
 HTML to the browser.” J.A. 25. The Board was free to
 reach this conclusion notwithstanding the contrary expert
 testimony offered by Express Mobile, which the Board
 deemed conclusory and void of “any substantive analysis of
 the actual amount of time it would take to regenerate an
 HTML file and send that file to a browser.” J.A. 25. 3 As


      3  At oral argument, counsel for Express Mobile as-
 serted that the Board failed even to consider the opinions
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 IN RE: EXPRESS MOBILE, INC.                                  11



 we have previously held, the Board is not required to accept
 even ostensibly unrebutted expert testimony. See TQ
 Delta, LLC v. CISCO Sys., Inc., 

, 1359 (Fed.
 Cir. 2019) (“This court’s opinions have repeatedly recog-
 nized that conclusory expert testimony is inadequate to
 support an obviousness determination on substantial evi-
 dence review.”); Skky, Inc. v. MindGeek, s.a.r.l., 

 (Fed. Cir. 2017) (“Moreover, the Board was not
 required to credit [a party’s] expert evidence simply be-
 cause [the party] offered it.”). The Board also made a fac-
 tual finding, supported by substantial evidence, that
 clicking on an “accept” button is not the only way for the
 display in VDM ’316 to be regenerated.
     In a similar vein, Express Mobile argues that VDM ’316
 only updates the display “‘periodically’ or at a ‘user’s in-
 struction’” and that “these time frames for updating are not
 ‘substantially contemporaneously.’” Opening Br. at 33
 (quoting VDM ’316, 9:14-16). But this disclosure pertains
 to updates made to the diary server, not to the user’s dis-
 play. See VDM ’316, 9:14-16 (“In step 310 diary applet 112
 sends changes (if any) for the user’s diary to the diary server
 (periodically or at user’s instruction).”) (emphasis added).



 of its expert, Mr. Weadock. See Opening Br. at 34, 44.
 There is no basis for reaching such a conclusion. To the
 contrary, we have every reason to presume, as we generally
 do, that the Board considered the evidence before it, partic-
 ularly given the numerous references to, and analysis of,
 Mr. Weadock’s opinion throughout the Board’s written de-
 cision. See e.g., Yeda Rsch. v. Mylan Pharms. Inc., 

 (Fed. Cir. 2018) (“As we have said numerous
 times, failure to explicitly discuss every fleeting reference
 or minor argument does not alone establish that the Board
 did not consider it.”); see also J.A. 20, 22-26, 28-29 (discuss-
 ing Mr. Weadock’s opinion).
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 12                                IN RE: EXPRESS MOBILE, INC.




 Thus, this disclosure is irrelevant and does not undermine
 the Board’s finding.
     Moreover, Express Mobile makes much of the following
 sentence appearing in one of the figures in VDM ’316: “Fi-
 nally, a new (updated) page is generated and displayed.”
 VDM ’316 at Figure 4(l) see also Opening Br. at 52. How-
 ever, in context, the Board was free to read “finally” as
 “merely refer[ring] to being the last of the bullet points”
 and “no way impl[ying] that the time required to generate
 and display the ‘new (updated) page’ is so long that it would
 not be substantially contemporaneous from a human user’s
 perspective.” J.A. 28.
     The Board also rejected an Express Mobile argument
 to the effect that “nothing will happen to the display” in
 VDM ’316 after a diary owner changes a privacy level un-
 less a user enters a password and clicks “OK.” See J.A. 29-
 30. The Board’s rejection of this understanding of VDM
 ’316 is supported by the fact that, as the Board noted, noth-
 ing in VDM ’316 requires “(A) entry of the password after
 selecting the privacy level rather than before or (B) re-en-
 tering the password if it had already been entered for a pre-
 vious change.” J.A. 30 (internal emphasis omitted). As the
 Board observed, VDM ’316 is silent as to “whether clicking
 OK button 457 is required to regenerate the display.” J.A.
 30. All of this constitutes substantial evidence support for
 the Board’s understanding of the prior art reference.
      Finally, Express Mobile faults the Board for failing to
 appreciate that VDM ’316 discloses that if a diary owner
 makes a change to the privacy setting for a content object,
 she may observe no visible change to the diary page. This
 is irrelevant. The challenged claims of Express Mobile’s
 patent do not require a display change on every occasion a
 user makes a selection. Instead, they only require that
 when a user selection requires a display change that the
 ensuing       display   change      occur    “substantially
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 IN RE: EXPRESS MOBILE, INC.                               13



 contemporaneously” with the user selection. See J.A. 29
 (“[N]either the user’s perception nor a change in the result-
 ing image is recited in the claim.”). In both the ’397 patent
 and VDM ’316, when a user selection does not require a
 corresponding visual change, it is not necessary for the dis-
 play to change nevertheless.
     In the end, the Board had before it a factual dispute
 over what was disclosed by a prior art reference. In making
 the required findings of fact, the Board considered and ex-
 pressly rejected Express Mobile’s narrow reading of VDM
 ’316. It addressed the specific arguments and evidence (in-
 cluding expert testimony) proffered by Express Mobile and
 found, reasonably, that Express Mobile “fail[ed] to provide
 sufficient evidence that [any] delay,” such as the time a
 button is selected and the time after the applet regenerates
 the HTML and sends it to the browser, “will be significant
 or noticeable from the human user’s perspective.” J.A. 25
 (internal emphasis omitted); see also J.A. 22 (Board hold-
 ing Express Mobile’s “assertions that the accept button
 must be selected in order to see any change in the display
 is therefore contradicted by the record”). We have been
 provided no meritorious basis to disturb these findings,
 each of which is supported by the substantial evidence.
                               IV
     We have considered Express Mobile’s remaining argu-
 ments but find them unpersuasive. Thus, we affirm the
 Board’s decision to sustain the examiner’s rejection of
 claim 1 of the ’397 patent as being obvious.
                        AFFIRMED