obviousness Archives - Page 8 of 9

In assessing obviousness rejections, a threshold issue is whether the cited reference(s) qualify as prior art. A reference qualifies as prior art for an obviousness determination only when it is “analogous” to the claimed invention. See M.P.E.P. § 2141.01(a).

Two separate tests define the scope of analogous prior art: (1) whether the art is from the same “field of endeavor,” regardless of the problem addressed, and (2) if the reference is not within the field of the inventor’s endeavor, whether the reference still is “reasonably pertinent” to the particular problem with which the inventor is involved. M.P.E.P. § 2141.01(a), para. I (citing In re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011) (quoting In re Bigio, 381 F.3d 1320, 1324 (Fed. Cir. 2004)).

On October 28, 2020, the Board issued a decision in Ex parte Taskinen reversing obviousness rejections, because the examiner did not establish that a cited secondary reference was analogous to the claimed invention. This case illustrates that care should be taken to ensure that cited references are analogous under at least one of the two applicable tests.

The claimed inventions were drawn to “adjustable massage apparatuses,” and the examiner rejected the claims as being obvious over Taskinen (US 2008/0200778) in view of Khen (WO 2008/063478) and Lockwood (US 2003/0014022).

However, the rejection did not explain why Lockwood—describing “wound treatment apparatuses”—was analogous to the claimed massage apparatuses.

The applicant argued that a person of ordinary skill in the relevant art would not rely upon the teachings of Lockwood to modify the device of the primary reference, because the structure and purpose of the apparatuses in this reference are different with respect to the claimed inventions. As explained in the Reply Brief:

Even though Lockwood describes a device utilizing low pressure suction, the structure and purpose of the Lockwood device are different with respect to the present application.

In this sense, the skilled person would not turn to Lockwood when developing the device according to Taskinen.

Furthermore, the skilled person would not try to combine features of Lockwood to Taskinen because they are not easily, if at all, combinable with Taskinen (or with Taskinen in view of Khen).

Although the examiner argued that Lockwood is in the same “field of endeavor” as the claimed inventions, the examiner did not explain why this reference was “reasonably pertinent” to the particular problem faced by the inventors. As explained in the Examiner’s Answer:

Appellant argues . . . that Lockwood does not appear relevant. Examiner respectfully disagrees. Lockwood is in the same field of endeavor of vacuum treatment devices for a user. Thus, Lockwood is relevant.

The Board disagreed that Lockwood is in the same “field of endeavor” as the claimed inventions, because “massage devices” are not “vacuum treatment devices for a user.”

In rendering its decision, the Board explained that the “field of endeavor” test is not a “subjective call” by the Examiner. Instead, this test requires the examiner to determine the appropriate field of endeavor by reference to explanations of the invention’s subject matter in the patent application, including the embodiments, function, and structure of the claimed invention. As explained by the Board:

‘[T]he field of endeavor test . . . requires the PTO to determine the appropriate field of endeavor by reference to explanations of the invention’s subject matter in the patent application, including the embodiments, function, and structure of the claimed invention.’ In re Bigio, 381 F.3d at 1325. ‘This test does not make the assessment of the field of endeavor a wholly subjective call for the examiner.’ Id. at 1326. Rather, ‘[t]he examiner and the Board must have a basis in the application and its claimed invention for limiting or expanding the scope of the field of endeavor.’ Id.

The Examiner makes no findings regarding whether Lockwood is analogous art and, instead, simply concludes that ‘Lockwood is in the same field of endeavor of vacuum treatment devices for a user,’ and ‘[t]hus, Lockwood is relevant.’ Ans. 10. We are left with no finding supported by evidence to support this conclusion.

Moreover, we find that Appellant’s field of endeavor is, in fact, not ‘vacuum treatment devices for a user’ generically. Rather, Appellant’s field of endeavor is massage devices. This is evidenced by the characterization of the Application’s technical field, the discussion of the prior art, the description of the invention, the figure, the detailed description, and the claims. Indeed, there is no reference to any application of the purported invention to anything other than a massage device.

Because the Examiner made no assertion regarding the “reasonably pertinent” test, the Board declined to make any findings about whether Lockwood is analogous under the second test.

Judges: J.C. KERINS, J.M. PLENZLER and C.M. DEFRANCO (Opinion by PLENZLER).

On September 30, 2020, the Patent Trial and Appeal Board (“Board”) issued a decision in Ex parte Drozdenko (Appeal No. 2020-001293) reversing an Examiner’s obviousness rejection for its erroneous applications of In re Rose, 220 F.2d 459 (CCPA 1955) and “design choice.”

Claim 1 at issue in Drozdenko is representative and stated:

A blade comprising:

an airfoil … including a body formed of an aluminum containing material;

a sheath … with a sandwich … including an outer adhesive layer adjacent the sheath, an intermediate [fabric] layer and an inner adhesive layer adjacent the body;

wherein said fabric layer is a woven fabric layer; and

wherein said woven fabric layer has holes that are less than .001 inch on average.

Decision on Appeal, Appeal No. 2020-001293, at 2 (P.T.A.B. Sept. 30, 2020) (non-precedential) (emphasis added).

Although the Examiner admitted that the prior art failed to disclose a fabric layer with holes less than 0.001 inch on average, the Examiner argued that “it would have been an obvious matter of design choice … to have [the] hole size claimed … such a modification would have involved a mere change in size of a component. A change in size is generally recognized as within the level of ordinary skill in the art.” Final Rej., at 4 (citing In re Rose) (emphasis added).

The Examiner’s rejection suffered two critical deficiencies. First, a finding of obvious design choice is precluded when the claimed structure and the function it performs are different from the prior art. See In re Gal, 980 F.2d 717, 719 (Fed. Cir. 1992). And in this case, the Appellant’s specification differentiated its woven fabric from the prior art scrim having larger holes.

Second, In re Rose applies to a change in the overall size of an article rather than the size of an individual component as explained by the Board below:

In Rose, the appellant argued that the claimed “lumber package” was large and required a lift truck for handling; whereas, the prior art packages (a package of relatively small pieces of lumber and a package of window screen frames) could be lifted by hand. The court held that “this limitation [(i.e., size and weight of the package)] is [not] patentably significant since it at most relates to the size of the article under consideration which is not ordinarily a matter of invention.

Here, in contrast, the Examiner does not propose a change in the overall size of the article under consideration (i.e., a blade (claim 1); an engine (claim 11)). Instead, the Examiner proposes changing the structure of Parker’s woven fabric (a scrim) to that of a tightly woven fabric having holes less than .001 inch on average, even though the Specification describes the tightly woven fabric as performing differently from a scrim.

Decision, at 3. Having failed to provide any other reason to substitute a woven fabric having holes that are less than 0.001 inch on average for the scrim described in the prior art, the Board declined to sustain the Examiner’s obviousness rejection.

Takeaways: The court in Rose did not address a modification in which the size of a particular component of an article is modified without a respective size change in the remaining components. Nevertheless, Rose is routinely misapplied to argue the obviousness of changing the size of a particular component analogous to Drozdenko. Thus, when Rose is applied in a rejection, the first step is to determine whether the resizing in question is for the entire article or only a component thereof. If it is the latter, then the Examiner’s reliance on Rose is misplaced.

Finally, to the extent that “design choice” may apply, the specification should be consulted to determine whether the change in size results in a difference in performance or function. A more detailed example of the “design choice” doctrine can be found here.

Judges: P. Kauffman, A. Reimers, T. Hutchings

An examiner sometimes raises an obviousness rejection under the “design choice” doctrine, alleging a claimed feature, such as a certain dimension, shape, or arrangement, is merely a “design choice” that would have been obvious to a person of ordinary skill in the art. In Ex parte Elliott, the Patent Trial and Appeal Board (“Board”) considered the Examiner’s obviousness rejection based on “design choice” and reversed the rejection because the Board found the Examiner did not provide evidence or reasoning adequate to support such a determination and Appellant’s specification, on the other hand, presented evidence that the recited structure solved a stated problem.

Claim 1 was illustrative of the claims on appeal in Elliott and was directed to an edible animal chew that had a particular structure, including “an internal support structure comprising inner walls and at least three struts.”

The Examiner found the primary reference, Nie, disclosed an extruded animal chew and the secondary references, Heyman and Tintle, taught edible food products (such as ice cream cones and pasta) that included internal walls and struts. The Examiner thus concluded it would have been obvious to provide Nie’s extruded animal chew with internal walls and struts as taught in Heyman and Tintle “as a manufacturing choice for the design of the pet chew.”

The Board, however, agreed with the Appellant that “there is no teaching or suggestion in [Heyman or Tintle] that it would be desirable to provide the support structures disclosed therein in a dog chew.”

Citing In re Kuhle, in which the court found the use of a claimed feature would be an obvious matter of design choice when it “solves no stated problem” and “presents no novel or unexpected result” over the disclosed alternatives, the Board noted that “[d]esign choice may serve as a basis for obviousness where alternative elements or configurations in the prior art perform the same function as the claimed aspects with no unexpected results.” The Board further emphasized “[i]n the context of a rejection based on design choice, the relevant issue is whether the alleged differences between the claimed invention and the prior art ‘result in a difference in function or give unexpected results.’”

The Board found Appellant’s specification taught that the recited internal support structure had certain functions, such as increased chewing time and reduced calorie content, in that the specification explicitly described that the internal support structure within the edible chew “provides longer lasting time per gram of product.” Therefore, the Board found Appellant’s specification presented evidence that the recited structure solved a stated problem. By contrast, as noted by the Board, the Examiner failed to identify evidence or provide sufficient reasoning supporting his determination that the difference between Nie’s animal chew having no internal structure and Appellant’s claimed animal chew having the specified internal walls and struts would have been an obvious design choice.

Because Appellant’s specification presented evidence showing the claimed feature solved a stated problem while the Examiner merely presented a conclusory finding, the Board reversed the Examiner’s obviousness rejection based on “design choice.”

Takeaway: A critical issue in addressing an obviousness rejection based on “design choice” is whether a claimed feature and the function it performs solve a stated problem or are otherwise different from the prior art. As illustrated by Elliott, a disclosure in the specification of the benefits or results provided by a claimed feature of purported design choice could weigh against obviousness. Therefore, when drafting a patent application, an applicant should consider including possible results, advantages, and benefits of every inventive feature, when applicable, to address a potential obviousness rejection based on “design choice.”

Judges: D. M. Praiss, C. C. Kennedy, and J. R. Snay

On September 29, 2020, the Patent Trial and Appeal Board (“Board”) issued a decision in Ex parte Brinhaus (Appeal No. 2019-006794) and reversed an Examiner’s obviousness rejection for failing to consider the prior art as a whole.

At issue in Ex parte Brinhaus were the requirements in independent claims 1 and 11 for “a bismuth nitrate crosslinking catalyst consisting of a water-insoluble basic bismuth nitrate” and “wherein the water-insoluble basic bismuth nitrate is the only metal nitrate.”

The prior art relied on by the Examiner mandated the presence of “at least one water-soluble metal nitrate” and differentiated prior compositions that included water-insoluble organic nitrates and/or nitrates. See U.S. Patent No. 7,211,182 (“the ‘182 patent”), col. 2, ll. 14–40. Thus, the prior art was clearly focused on the use of water-soluble nitrates and their benefits relative to water-insoluble nitrates.

Paradoxically, when describing the preferred water-soluble metal nitrates, the prior art apparently included a water-insoluble metal nitrate– Bi₅O(OH)₉(NO₃)₄:

The metal nitrates are selected from among the water-soluble nitrates of metals from the group consisting of metals of atomic numbers 20 to 83, wherein chromium, arsenic, rubidium, ruthenium, rhodium, palladium, cadmium, antimony, caesium, osmium, iridium, platinum, mercury, thallium and lead are excepted.… Preferred nitrates are those of titanium, vanadium, iron, zinc, yttrium, zirconium, tin, cerium, neodymium or bismuth, in particular of yttrium, neodymium or bismuth, especially of bismuth. Examples of bismuth nitrates are Bi(NO₃)₃and Bi₅O(OH)₉(NO₃)₄.

The ’182 patent, col. 3, l. 55–col. 4, l. 3 (emphasis added). According to the Examiner, this was sufficient to present a case of obviousness despite the claims stating that “the water-insoluble basic bismuth nitrate is the only metal nitrate.”

On balance, the Board found the Examiner’s position untenable because the prior art “as a whole, so strongly emphasizes use of a water-soluble nitrate … that a person of ordinary skill in the art would not have understood the last sentence of this paragraph as teaching or suggesting use of water-insoluble Bi₅O(OH)₉(NO₃)₄ as a sole metal nitrate.” Consequently, the Board reversed the Examiner’s obviousness rejection.

Takeaway: It is important to confirm that the portions of the prior art cited by the Examiner are not taken out of context and are consistent with the prior art as a whole. Occasionally, an isolated passage of a prior art reference may be inconsistent with its broader teachings. This is why a basic tenet of patent law is that the prior art must be considered in its entirety, including any portions that diverge from the claimed invention. See, e.g., In re Fine, 837 F.2d 1071, 1075 (Fed. Cir. 1988) (“One cannot use hindsight reconstruction to pick and choose among isolated disclosures in the prior art to deprecate the claimed invention.”); In re Dow Chemical Co., 837 F.2d 469, 473 (Fed. Cir. 1988) (“The full field of the invention must be considered … including that which might lead away from the claimed invention.”); W.L. Gore & Assoc., Inc. v. Garlock, Inc., 721 F.2d 1540, 1550 (Fed. Cir. 1983) (“In its consideration of the prior art, however, the district court erred … in considering the references in less than their entireties, i.e., in disregarding disclosures in the references that diverge from and teach away from the invention at hand.”).

Judges: T. Ownes, J. Snay, B. Range

It is well-settled that if a proposed modification or combination of prior art would change the principle of operation of the prior art invention being modified, the teachings of the references are not sufficient to render the claims prima facie obvious. In Ex parte Binder (Appeal No. 2019-003108), the Patent Trial and Appeal Board (“Board”) reversed the Examiner’s obviousness rejection on the ground that the Examiner’s proposed modification changed the principle of operation of the primary reference.

The subject matter disclosed in the application at issue related to “electric shavers having electronic imaging functions.” Claim 1 was illustrative of the claims on appeal and was drawn to a handheld device “for capturing and displaying images and for identifying an element in the images.” The claimed device included, among other components, “a first digital camera for capturing a first image,” “a second digital camera for capturing a second image distinct from the first image,” and “a digital image processor coupled to the digital cameras for receiving the digital signals for receiving and processing the captured images.” Further, the digital image processor identified the element in the captured images “using pattern recognition.”

The Examiner relied primarily on Oswald, which described a mobile communication device having two video cameras, for the claimed device. The Examiner admitted that Oswald did not disclose the image identification was accomplished “using pattern recognition.” However, the Examiner introduced Doughty, which described 3D image correlation photogrammetry, and argued it would have been obvious to “modify” Oswald to use Doughty’s pattern recognition technique to “determine strain fields on the skin surface” and to “quickly and conveniently apply a removable pattern.”

The Board disagreed. The Board first found Oswald explicitly described in the specification and illustrated in the figures that the two video cameras were on opposite sides of the device and pointed in opposite directions. The Board further noted Oswald taught the first camera was used to track the user “in real-time to determine their body and facial movement” while the second camera was pointing in the “direction as the movement of the user.” Therefore, the two cameras of Oswald’s device not only were directed at opposite directions but were focused upon different objects. The mobile device described in Oswald thus could be used to “allow a reporter to capture a sequence of images of the scene, and simultaneously capture a sequence of images of himself or herself describing the scene.” By contrast, as noted by the Board, the dual cameras’ focus in the technique depicted in Doughty was in the same general direction and was upon the same object to achieve a 3D representation of the object for strain measurement purposes. Accordingly, the Board found combining Oswald’s apparatus with Doughty’s pattern recognition teachings “in order to determine strain fields on the skin surface” as alleged by the Examiner would require both of Oswald’s cameras to focus in essentially the same direction and upon the same object, which contradicted Oswald’s teaching that the two cameras faced in opposite directions and were upon different objects.

Therefore, the Board found the Examiner’s alleged modification would change the principle of operation of Oswald and agreed with the Appellant that the Examiner relied on an “improper rationale for combining [] the Oswald and Doughty references.” Consequently, the Board reversed the Examiner’s obviousness rejection.

Takeaway: When an Examiner relies on a secondary reference for a feature missing from a primary reference in an obviousness rejection, she tends to use the benefits or advantages described in the secondary reference to justify her reliance on the secondary reference. Under such circumstances, it is important to investigate what is the underlying reason described in the secondary reference that leads to the identified benefits and to compare it with the principle of operation described in the primary reference. As illustrated by Binder, if the underlying reason contradicts and thus would change the principle of operation of the primary reference, no prima facie case of obviousness is established.

Judges: J. C. Kerins, M. L. Hoelter, and A. R. Reimers

U.S. patent claims usually contain the term “comprising.” This term indicates that an item in the claim must include certain specified components, but that the item also may include other, unspecified components. Alternatively, patent claims sometimes contain the term “consisting of.” This term indicates that an item in the claim is closed to unspecified components.

In between the open term “comprising” and the closed term “consisting of” is the term “consisting essentially of.” This semi-closed term indicates that an item in the claim is limited to the components specified in the claim “and those that do not materially affect the basic and novel characteristic(s)” of the claimed invention. In re Herz, 537 F.2d 549, 551-52 (CCPA 1976) (emphasis in original).

The semi-closed nature of “consisting essentially of” sometimes is attractive during patent prosecution. For example, if the prior art discloses the combination of components A, B and C, it might be difficult to distinguish a patent claim with an item comprising components A and B since the item is open to the unspecified component C by virtue of the open term “comprising.” Amending the claim so that the item consists of components A and B (rather than comprises components A and B) might distinguish the claim from the prior art, if the prior art requires component C. However, such an amended claim might be easy for a competitor to design around, simply by adding component D to components A and B in the competitor’s product. The term “consisting essentially of” can provide a middle ground, allowing a patent applicant to distinguish a claim from prior art without excessively narrowing the scope of the claim.

However, when using the term “consisting essentially of,” the patent applicant often must explain to the examiner what the “basic and novel characteristic(s)” of the claimed invention are, and why they would be “materially affect[ed]” if the claimed invention were to include an additional component from the prior art. This issue is illustrated in the recent Patent Trial and Appeal Board (“Board”) case of Ex parte Nakajima.

Claim 1 in Nakajima recited:

A method of modifying starch, comprising subjecting a powdery mixture consisting essentially of starch and water-soluble hemicellulose at a weight ratio of 95:5 to 80:20 to moist-heat treatment at 100 to 200°C.

The examiner rejected claim 1 as obvious over two references, Yoshino in view of Narimatsu. The examiner relied on Yoshino for a method of subjecting starch to moist-heat treatment. The examiner acknowledged that Yoshino did not disclose water-soluble hemicellulose, and relied on Narimatsu for this component. Narimatsu described mixing water-soluble hemicellulose as a powder with wheat flour and starch. The examiner took the position that it would have been obvious to combine the water-soluble hemicellulose of Narimatsu with the starch of Yoshino, and then to treat the mixture of hemicellulose and starch with moist heat.

The applicant argued that the combination of Yoshino and Narimatsu would require the presence of wheat flour along with water-soluble hemicellulose and starch. Because of this, the applicant argued that the combination of these references would not satisfy the requirement that the powdery mixture consist essentially of starch and water-soluble hemicellulose.

In particular, the applicant argued that the presence of wheat flour would materially affect the basic and novel characteristics of the claimed invention. The applicant identified the basic and novel characteristics of the claimed invention as suppression of swelling or disintegration of starch granules. The applicant explained that including wheat flour with starch and water-soluble hemicellulose would not lead to such suppression. This explanation was supported by experimental data, submitted in a declaration, showing that samples containing wheat flour did not show the same inhibitory effect on swelling and disintegration of starch granules that was observed in samples without wheat flour.

Since the presence of wheat flour would materially affect the basic and novel characteristics of the claimed invention, the applicant argued that wheat flour should be excluded by the “consisting essentially of” phrase.

In response, the examiner contended that it would have been obvious to combine the water-soluble hemicellulose of Narimatsu with the starch of Yoshino, without including the wheat flour of Narimatsu.

The Board sided with the applicant. The Board found that Narimatsu taught adding water-soluble hemicellulose to a mixture of wheat flour and starch, but did not teach or suggest adding water-soluble hemicellulose to starch alone. The Board agreed that the applicant had provided sufficient evidence that including wheat flour in the powdery mixture of claim 1 would materially affect the basic and novel properties of the claimed invention. Accordingly, the Board found wheat flour to be excluded by the “consisting essentially of” phrase, and reversed the obviousness rejection.

Takeaway: The transitional phrase “consisting essentially of” provides a middle-ground between the open “comprising” and the closed “consisting of” phrases. When using the phrase “consisting essentially of,” applicants should be prepared to identify, on the record, what the basic and novel characteristics of the claimed invention are. Applicants also should be prepared to provide a technical argument, possibly supported by experimental data, explaining why the basic and novel characteristics would be materially affected if the claimed invention were to include an additional component from the prior art.

Judges: Franklin, Snay, Ren

The term “comprising,” when used in the preamble of a claim, permits the inclusion of other elements or materials in addition to those specified in the claim. However, “‘comprising’ is not a weasel word with which to abrogate claim limitations.” Dippin’ Dots, Inc. v. Mosey, 476 F.3d 1337, 1343 (Fed.Cir.2007).

Ex parte Martino involved a claim that required “[a] hand held olfactory tester comprising … a single odorant chamber.” Decision on Appeal, Appeal No. 2020-001003, at 2 (P.T.A.B. Sept. 11, 2020) (non-precedential).

In rejecting the claim, the Examiner only presented prior art having a tester with a plurality of chambers. Yet, the Examiner argued that the claim was obvious because “the plurality of containers shown [in the prior art] also include a single container.” Id. at 6. According to the Examiner, the claims needed to recite that the tester consists of only a single chamber because the term “comprising” allowed for additional, unrecited elements.

The Applicant disagreed, because the claim explicitly required a single chamber. The Board sided with the Applicant.

The Board noted that “[t]he presumption raised by the term ‘comprising’ does not reach into each of the [elements] to render every word and phrase therein open-ended,” and must be read in view of the specification. Id. at 4. The Board then applied a two-step analysis. First, the Board found that the ordinary and customary meaning of the term “single” is “one and only one.” Next, the Board confirmed that the specification was consistent with this meaning. Here, the Board highlighted, among other things, that the specification differentiated prior art testers having a number of odorant chambers, described a housing with “an odorant chamber,” and depicted a device with only one chamber. Consequently, the Board found that the term “comprising” in the preamble did not negate the meaning of “single” as understood by one in the art.

Without any prior art disclosing or otherwise suggesting a tester comprising a single chamber, the Board reversed the Examiner’s obviousness rejection.

Takeaway: The scenario in Martino is quite common because of the presumption to construe the term “comprising” to be nonexclusive and the tendency for some examiners to play wordsmith. Martino also shows that even when there is no ambiguity in the claim language, the Board may still consult the specification for consistency with the ordinary and customary meaning of a term like “single.” So, what other options are available if you want to claim a limited number (e.g., one) of an element but the specification permits a plurality? One option is to add a wherein clause that states, “wherein the [device, article, composition, etc.] comprises no more than one element.”

Judges: A. Fetting, U. Jenks, A. Shah

A prima facie obviousness rejection combining multiple disclosures requires a reason to modify or combine the prior art to achieve the claimed invention with a reasonable expectation of success. In Ex parte Liu (Appeal No. 2018-001645), the Patent Trial and Appeal Board (“Board”) reversed the Examiner’s obviousness rejections because the Board found teachings in the prior art references to be inconsistent such that there would not have been a reason to modify or combine the prior art in the manner as set forth in Appellant’s claims.

For a prior art reference to be properly used in an obviousness rejection, the reference must be analogous art to the claimed invention. In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). A reference is analogous art to the claimed invention if: (1) the reference is from the same field of endeavor as the claimed invention (even if it addresses a different problem); or (2) the reference is reasonably pertinent to the problem faced by the inventor (even if it is not in the same field of endeavor as the claimed invention). MPEP 2141.01(a), citing Bigio.

When considering the obviousness of ranges, it is a fundamental principle of U.S. patent law that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456 (CCPA 1955). Consequently, modifications to readily optimized parameters such as temperatures and concentrations disclosed in the prior art will generally not be patentable under Section 103. Aller, 220 F.2d at 456. Furthermore, a presumption of obviousness exists when ranges disclosed in the prior art overlap with the ranges of a claimed invention. See, e.g., E.I. du Pont de Nemours & Company v. Synvina C.V., 904 F.3d 996, 1006 (Fed. Cir. 2018).

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