author: CHEN, Circuit Judge.

text:
    SYNOPSYS, INC., a Delaware Corporation, Plaintiff-Appellant v. MENTOR GRAPHICS CORPORATION, an Oregon Corporation, Defendant-Appellee
    2015-1599
    United States Court of Appeals, Federal Circuit.
    Decided: October 17, 2016

      Carter Glasgow Phillips, Sidley Austin LLP, Washington, DC, argued for plaintiff-appellant. Also represented by Ryan C. Morris; M. Patricia Thayer, Philip W. Woo, San Francisco, CA.
    John D. VaNdenberg, Klarquist Spark-man, LLP, Portland, OR, argued for defendant-appellee. Also represented by Andrew M. Mason.
    Before LOURIE, MOORE, and CHEN, Circuit Judges.
   CHEN, Circuit Judge.

Synopsys, Inc. appeals the District Court for the Northern District of California’s grant of summary judgment invalidating certain claims of U.S. Patent Nos. 5,530,841; 5,680,318; and 5,748,488 (collectively, the Gregory Patents) under 35 U.S.C. § 101. See Synopsys, Inc. v. Mentor Graphics Corp., 78 F.Supp.3d 958 (N.D. Cal. 2015) (Summary Judgment Order). Synopsys argues that, contrary to the district court’s holding, the Gregory Patents are not directed to ineligible subject matter because they relate to complex algorithms used in computer-based synthesis of logic circuits. We disagree. A review of the actual claims at issue shows that they are directed to the abstract idea of translating a functional description of a logic circuit into a hardware component description of the logic circuit. This idea of reviewing a description of certain functions and turning it into a representation of the logic component that performs those functions can be—and, indeed, was—performed mentally or by pencil and paper by one of ordinary skill in the art. Moreover, the claims do not call for the involvement of a computer. They therefore cannot be characterized as an improvement in a computer as a tool. The claims add nothing to the abstract idea that rises to the level of an “inventive concept” as required by precedent. We therefore affirm the district court’s grant of summary judgment of invalidity.

BACKGROUND

I. The Gregory Patents

The Gregory Patents are continuations of since-abandoned U.S. Patent Application No. 07/632,439 and all share a common specification. The patents relate generally to the logic circuit design process. The logic circuit design process has evolved significantly over time. Synopsys describes the inventions of the Gregory Patents as critical steps in this evolution.

In the early days of logic circuits, a designer was required to specify his design in great detail. He would do so in the form of a schematic diagram that identified individual hardware components and the interconnections between them or via a set of Boolean logic equations that specified the precise functionality of the design. '841 patent, 1:41-44. A fabrication facility would then build the corresponding physical circuit based on the architecture presented in the detailed design.

Over time, logic circuits became more and more complex. As complexity increased, many designers began to focus on the higher-level functionality of their designs and became less concerned with the detailed schematics or Boolean logic equations necessary to implement that functionality. Id. at 1:47-49. These developments created a need for a form of computer code that a designer could use to describe a logic circuit at a functional level. This led to the advent of various functional computer languages known as hardware description languages (HDLs). Id. at 1:50-55. HDLs allowed designers to “describe only the desired operation of the logic circuit, i.e., the signals generated by the logic circuit,” rather than having to specify the actual individual components and interconnections of the logic circuit. Id. at 1:62-64; see also id. at 1:50-55 (describing HDLs as operating “at least one level of abstraction removed from a schematic diagram or a set of [B]oolean logic equations”).

The introduction of HDLs necessitated the development of computerized design tools that could translate the functional description of the logic circuit into a detailed design for fabrication. Id. at 1:64-67. Early computerized design tools, however, could only recognize, and translate simple circuit elements. Id. at 2:1-3. “For many circuit elements, such as high impedance drivers, level sensitive latches and edge sensitive flip-flops, the designer was required first to specify [ (i.e., instantiate) ] the specific circuit element and then the desired connection of that element using the HDL.” Id. at 2:3-7.

The Gregory Patents describe constructs known as “control flow graphs,” id. at 2:65-3:8, and “assignment conditions,” id. at 3:22-30, that provide a scheme to translate HDL-based functional descriptions of logic circuits into hardware component descriptions of those same circuits without requiring the designer to instantiate any individual hardware components— not even high impedance drivers, level sensitive latches, or edge sensitive flip-flops. Id. at 2:27-36. The patent specification goes through several examples for different components to illustrate how control flow graphs and assignment conditions are used to translate a functional description of a logic circuit to a hardware component description of that logic circuit.

We will explore in detail one such example, which is claimed in claim 1 of the '841 patent. But, first, one must understand the general concept of binary logic as well as the constructs introduced in the Gregory Patents—namely flow control statements, directive statements, asynchronous load functions, and asynchronous data functions—what they are and how they work. We can gain this understanding through a review of the following simple example of HDL code:

IflCOND)

Q: = l;

else

Q: = o>

endif

Here, “Q” is the output of the segment of code and “COND” is a condition. The value of output Q is dictated by the line of code “If(COND),” which the specification labels as a “flow control statement.” See '841 patent, 11:20-23. This line . of code asks the question “Is condition COND true?”—i.e., does it equal l? As the moniker “flow control statement” suggests, the answer to this question controls the flow of how the rest of the code runs. Id. at 11:18-20. In the above example, when condition COND is true (i.e., has the value “1”), the code flows to the immediately-following line of code, i.e., “Q: = 1.”- The specification labels this line of code as a “directive statement” for it directs that output Q be assigned the value 1. Id. at 11:1-8. In contrast, when condition COND is false (i.e., has the value “0”), the code skips the directive statement “Q: .= 1” and, flows directly to the line of code “else.” Here, we find another directive statement: “Q: = 0.” Pursuant to this directive statement, Q is assigned the value 0. The relationship between condition COND and output Q can be summarized in the following table:

The Gregory Patents describe how the invention converts the statements from the HDL code into two constructs the specification calls “assignment conditions”: (1) an “asynchronous load function;” and (2) an “asynchronous data function.” These two assignment conditions provide another type of description of the functionality of the HDL code. The district court construed “asynchronous load function,” represented “AL(),” as “a hardware description function for load specifying the condition or conditions under which the variable is [asynchronously] assigned a value.” Claim Construction Order, 2013 WL 5957866, at *4. In the above example, the “asynchronous load function” for output Q is “1” (i.e., AL(Q) = 1), because output Q is assigned a new value (i.e., it is “loaded”) both when condition COND, is true (Q: = 1) and when it-is. false (Q: = 0). See '841 patent, 4:21-23.

The district court construed “asynchronous data function,” represented “ADO,” as “a hardware description function for data specifying the condition or conditions under which the variable is [asynchronously] assigned a value.” Claim Construction Order, 2013 WL 5957866, at *3. Here, the “asynchronous data function” for output Q is “COND” because output Q is assigned the value “1” if, and only if, condition COND is true. '841 patent, 4:23-25. Therefore, AD(Q) = COND.

The asynchronous load function for this example HDL code (i.e., AL(Q) = 1) is constant, because it always equals 1. In that way it differs from the asynchronous data function. The value of the asynchronous data function (i.e., AD(Q) = COND) is non-constant or variable, because it can be 1 or 0 depending on the value of condition COND. The concept of constant—as opposed to non-constant or variable—assignment conditions will be important as we next explore claim 1.

Representative claim 1 and the associated portion of the specification detail the method of using assignment conditions to translate from a functional description of a level sensitive latch into a hardware component description of that same latch. Claim 1 reads:

A method for converting a hardware independent user description of a logic circuit, that includes flow control statements including an IF statement and a GOTO statement, and directive statements that define levels of logic signals, into logic circuit hardware components comprising:
converting the flow control statements and directive statements in the user description for a logic signal Q into an assignment condition AL(Q) for an asynchronous load function AL() and an assignment condition AD(Q) for an asynchronous data function AD(); and
generating a level sensitive latch when both said assignment condition AL(Q) and said assignment condition AD(Q) are non-constant;
wherein said assignment condition AD(Q) is a signal on a data input line of said flow through latch;
said assignment condition AL(Q) is a signal on a latch gate line of said flow through latch; and
an output signal of said flow through latch is said logic signal Q.

Id. at 62:61-63:12.

A level sensitive latch is a basic form of memory. It is a hardware component that stores a binary input (i.e., the value “1” or “0”), but only when a specified condition is true. A level sensitive latch can be described functionally using HDL code as follows:

Id. at 21:49-56. Here, “D” represents the input to the latch and “Q” the output.

The relationship between input D and output Q is dictated by the “flow control statement” defined by the line of code “If(COND).” In this example, when condition “COND” is true (i.e., has the value “1”), the code flows to the immediately following line of code—i.e., “Q: = D”—and output Q is assigned the value of input D. In contrast, when condition COND is false (i.e., has the value “0”), the code skips the directive statement “Q: = D” and flows directly to the line of code “else.” In this example, no instructions follow “else.” The value of output Q therefore remains unchanged. In sum, when condition COND is true, output Q is assigned the value of input D; when condition COND is false, output Q retains its prior value regardless of whether the value of input D remains the same or changes. The relationship between condition COND, input D, and output Q can be summarized in the following table:

The claimed method takes the functional description of the latch as an input. Id. at 62:61-62. It then converts the functional description into an equivalent description in the form of (1) an asynchronous load function; and (2) an asynchronous data function. Id. 62:66-63:3. Here, the asynchronous load function for output Q is COND because output Q is assigned a new value (i.e., it is “loaded”) whenever condition COND is true. The asynchronous data function for Q is “COND*D” because output Q is assigned the value “1” if, and only if, both condition COND and input D are true.

The assignment conditions associated with the functional description of the latch are summarized in the table below:

Id. at 21:58-65.

Claim 1 specifies that where, as here, the asynchronous load function and the asynchronous data function are non-constant, the claimed method generates a level sensitive latch. Id. at 63:4-6; see also id. at 24:56-63. Claim 1 further specifies that the latch’s data input is the asynchronous data function (i.e., COND*D); the latch’s gate is the asynchronous load function (i.e,, COND); and the latch’s output is Q. Id. at 63:7-12; see also id. at 22:12-23, 24:56-63.

A hardware component description of the level sensitive latch is shown below:

Id. at Fig. 8A. In this hardware component description, the rectangle marked with 342 represents the level sensitive latch, itself. Consistent with the above description, the latch’s input (341-D) is the logic AND (340) of input D and condition COND; and, its gate (342-G) is condition COND. Id. at 22:12-23.

Importantly, the Gregory Patents make clear that HDL code existed in the prior art. See id. at 1:49-50 (“Hardware description language (HDL) was developed to assist such designers.”). The HDL code for the level sensitive latch shown in Table 8 was already well known by the time the claimed inventions of the Gregory Patents were conceived. The same is true of the circuit diagram for a level sensitive latch shown in Figure 8A; circuit diagrams like this existed long before the Gregory Patents. See id. at 1:41-44 (“Historically, a user was required typically to supply either a logic schematic diagram for use in the automated design process.... ”). What Gregory instead claims to have invented is a process for interpreting the HDL code in Table 8 that uses the assignment conditions of Table 9 to identify the circuit diagram of Figure 8A as the hardware that performs the function recited in the HDL code. At bottom, the information provided in Table 8 (code), Table 9 (assignment conditions), and Figure 8A (circuit diagram) are all equivalent representations of the same thing: a level sensitive latch.

The Gregory Patents describe and claim additional examples relating to other circuit components, specifically high impedance drivers and edge sensitive flip-flops, that involve the use of different assignment conditions—namely synchronous load functions, synchronous data functions, don’t care functions, and high-impedance functions.

II. Procedural History

Synopsys filed suit against Mentor Graphics Corp. on December 12, 2012, in the Northern District of California alleging infringement of the Gregory Patents and U.S. Patent No. 6,836,420 (collectively, the patents-in-suit). In particular, Synopsys alleged that Mentor Graphics’ “Precision” family of logic synthesis products and its “Veloce” family of emulators infringed the following claims of the patents-in-suit: claim 1 of the '841 patent; claims 32, 35, and 36 of the '318 patent; claims 1, 2, 8, and 9 of the '488 patent; and claims 1-3, 10-13, and 20 of the '420 patent.

Based on disputed issues raised by the parties, the court construed certain claim terms of the patents-in-suit on November 7, 2013. Notably, the court did not construe any claim of the Gregory Patents to require the use of a computer—general purpose or otherwise—or any other type of hardware. See Claim Construction Order, 2013 WL 5957866, at *2-5. Neither party challenges any of the district court’s claim constructions on appeal.

The parties subsequently cross-moved for summary judgment on Mentor Graphics’ defense that the Gregory Patents were invalid under 35 U.S.C. § 101. The court granted Mentor Graphics’ motion and invalidated all asserted claims of the Gregory Patents. See Summary Judgment Order, 78 F.Supp.3d at 966. In reaching its decision, the court applied the now common two-step test described by the Supreme Court in Alice Corp. v. CLS Bank International, — U.S. -, 134 S.Ct. 2347, 189 L.Ed.2d 296 (2014). See Summary Judgment Order, 78 F.Supp.3d at 962-63, The court observed that “[e]ach of the steps in the claimed methods can be performed by a skilled designer either mentally or with pencil and paper.” Id. at 961. Due to the breadth of the claims, the court found, under the first step of the Alice test, that “the claims are directed to a mental process ... ‘a subcategory of unpatentable abstract ideas.’” Id. at 963 (quoting CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1371 (Fed. Cir. 2011)); see also id. at 961 (noting that while the claimed method “is primarily intended for use with a computer,” “the claims themselves do not expressly call for a computer or other piece of equipment”); id. at 963 (“The claimed methods here at issue do not entail anything physical. Rather, as discussed above, the asserted claims are directed to the process of inference, which is fundamental to IC design and can be performed mentally.”); id. at 964 (“[T]he claimed methods do not require complex calculations; as noted, the claimed steps were performed mentally by the inventors and can be performed by a skilled designer either mentally or with the aid of a pencil and paper.”).

Turning to the second step of the Alice test,( the court rejected Synopsys’ argument that the claims necessarily contained an inventive concept because Mentor Graphics failed to present prior art that disclosed the claimed methods. Id. at 964. The court then found that, while the claims were directed to a “specific” mental process, they nonetheless “preempted] a building block of human ingenuity.” Id. at 965. Finally, it found that the claims concerned “well-understood, routine, conventional activity, previously engaged in by those in the field.” Id. (“As acknowledged in the specification, skilled designers had been inferring the necessary parts and connections for ICs long before the Gregory patents issued.”).

The court entered final judgment with respect to the Gregory Patents on April 20,2015. Synopsys appeals from this final judgment. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

DISCUSSION

“We review a district court’s grant of summary judgment according to the law of the regional circuit, here the Ninth Circuit, where summary judgment is reviewed de novo.” Kaneka Corp. v. Xiamen Kingdomway Grp. Co., 790 F.3d 1298, 1303 (Fed. Cir. 2015) (citations omitted). “In the Ninth Circuit, summary judgment is appropriate when, drawing reasonable inferences in favor of the non-moving party, there is no genuine issue of material fact.” Id. (citing Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011)).

A patent may be obtained for “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” 35 U.S.C. § 101. The Supreme Court has “ ‘long held that this provision contains an important implicit exception: Laws of nature, natural phenomena, and abstract ideas are not patentable.’ ” Ass’nfor Molecular Pathology v. Myriad Genetics, Inc., — U.S. -, 133 S.Ct. 2107, 2116, 186 L.Ed.2d 124 (2013) (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., — U.S. -, 132 S.Ct. 1289, 1293, 182 L.Ed.2d 321 (2012)) (alteration omitted). First in Mayo and later in Alice, the Supreme Court set forth a two-step analytical framework to identify patents that, in essence, claim nothing more than abstract ideas. The court must first “determine whether the claims at issue are directed to a patent-ineligible concept.” Alice Corp., 134 S.Ct. at 2355. If so, the court must then “consider the elements of each claim both individually and ‘as an ordered combination’ to determine whether the additional elements ‘transform the nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo, 132 S.Ct. at 1298, 1297). The Supreme Court has described this second step of the analysis as “a search for an ‘inventive concept.’ ” Id.

I. Alice Step 1: Are the Asserted Claims directed to an abstract idea?

The district court based its Alice Step 1 analysis on a basic premise: “the claims are directed to a mental process.” Summary Judgment Order, 78 F.Supp.3d at 963. We held in CyberSource that mental processes are “a subcategory of unpatentable abstract ideas.” 654 F.3d at 1371. As we explained:

Methods which can be performed entirely in the human mind are unpatentable not because there is anything wrong with claiming mental method steps as part of a process containing non-mental steps, but rather because computational methods which can be performed entirely in the human mind are the types of methods that embody the “basic tools of scientific and technological work” that are free to all men and reserved exclusively to none.

Id. at 1373 (quoting Gottschalk v. Benson, 409 U.S. 63, 67, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972)) (emphasis in original). While the Supreme Court has altered the § 101 analysis since CyberSource in cases like Mayo and Alice, we continue to “treat[ ] analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, as essentially mental processes within the abstract-idea category.” Elec. Power Grp., LLC v. Al- stom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016) (citations omitted).

Although the Asserted Claims (i.e., claim 1 of the '841 patent; claims 32, 35, and 36 of the '318 patent; and claims 1, 2, 8, and 9 of the '488 patent), which are all method claims, are devoid of any reference to a computer or any other physical component, Synopsys disputes the district court’s characterization of the claims as mental processes. It suggests that the “complexity” of the claimed methods would make it implausible—if not impossible—for a skilled logic circuit designer to perform the methods mentally or with pencil and paper. Appellant’s Opening Br. 21. It distinguishes these supposedly “complex” claims from the “simple” concepts found unpatentable in cases like Alice and Bilski . Appellant’s Opening Br. 39.

But, Synopsys’ argument is belied by the actual claims at issue. The parties agree that claim 1 of the '841 patent, discussed above, is representative of all Asserted Claims. For convenience, we present the claim again here:

A method for converting a hardware independent user description of a logic circuit, that includes flow control statements including an IF statement and a GOTO statement, and directive statements that define levels of logic signals, into logic circuit hardware components comprising:
converting the flow control statements and directive statements in the user description for a logic signal Q into an assignment condition AL(Q) for an asynchronous load function AL() and an assignment condition AD(Q) for an asynchronous data function AD(); and generating a level sensitive latch when both said assignment condition AL(Q) and said assignment condition AD(Q) are non-constant;
wherein said assignment condition AD(Q) is a signal on a data input line of said flow through latch;
said assignment condition AL(Q) is a signal on a latch gate line of said flow through latch; and
an output signal of said flow through latch is said logic signal Q.

'841 patent, 62:61-63:12. The claim recites a method of changing one description of a level sensitive latch (i.e., a functional description) into another description of the level sensitive latch (i.e., a hardware component description) by way of a third description of that very same level sensitive latch (i.e., assignment conditions). As demonstrated above, supra at 1142-44, and in the patent specification itself, '841 patent, 21:45-22:23, the method can be performed mentally or with pencil and paper. The skilled artisan must simply analyze a four-line snippet of HDL code:

id. at 21:49-56; translate this short piece of code into assignment conditions:

id. at 21:58-65; and further translate those two assignment conditions into a schematic representation of a level sensitive latch:

id. at Fig. 8A. Although an understanding of logic circuit design is certainly required to perform the steps, the limited, straightforward nature of the steps involved in the claimed method make evident that a skilled artisan could perform the steps mentally. The inventors of the Gregory Patents confirmed this point when they admitted to performing the steps mentally themselves. Summary Judgment Order, 78 F.Supp.3d at 961, 964.

Synopsys’ reliance on TQP Development, LLC v. Intuit Inc., No. 2:12-cv-180-WCB, 2014 WL 651935 (E.D. Tex. Feb. 19, 2014), is therefore misplaced. See Appellant’s Opening Br. 39 n.8. In that case, the district court denied the defendant’s motion for summary judgment that claims for a specific data encryption method for computer communication were invalid under § 101. TQP, 2014 WL 651935, at *1. It distinguished the claims at issue from the mental processes found unpatentable in cases like Gottschalk, It explained that unlike those “simple,” “basic” processes, the plaintiffs “invention involves a several-step manipulation of data that, except in its most simplistic form, could not conceivably be performed in the human mind or with pencil and paper.” Id. at *4 (emphasis added). This case is different. Representative claim 1 is directed to generating a representation of a single specific hardware component and can be—and was—performed mentally or with pencil and paper.

Synopsys next argues that even if the Asserted Claims could be performed mentally they would, in practice, be performed on a computer. See, e.g., Appellant’s Opening Br. 39 n.8 (“The methods here are designed for use by computers, and a skilled artisan would understand that the process is designed solely for computers.”), Appellant’s Reply Br. 9 n.6 (“Mentor’s argument completely ignores that the purpose of the claimed inventions was to avoid the need to design certain circuit elements by hand and enable the increasingly necessary automation of circuit design through the use of synthesis software.”). It attempts to tie the claims to those computerized design tools now common in industry. In support of this argument, counsel for Synopsys during oral argument pointed to the “200 pages of code” attached to the specifications of the Gregory Patents that he contended reveal the “true novelty”. of the Asserted Claims. Oral Argument Tr. 4:25-4:37.

While Synopsys may be correct that the inventions of the Gregory Patents were intended to be used in conjunction with computer-based design tools, the Asserted Claims are not confined to that conception. The § 101 inquiry must focus on the language of the Asserted Claims themselves. See Accenture Global Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1345 (Fed. Cir. 2013) (admonishing that “the important inquiry for a § 101 analysis is to look to the claim”); see also Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat'l Ass’n, 776 F.3d 1343, 1346 (Fed. Cir. 2014) (“We focus here on whether the claims of the asserted patents fall within the excluded category of abstract ideas.”), cert. denied, — U.S. -, 136 S.Ct. 119, 193 L.Ed.2d 208 (2015).

On their face, the claims do not call for any form of computer implementation of the claimed methods. Synopsys stops short of arguing that the Asserted Claims must be construed as requiring a computer to perform the recited steps, Synopsys never sought such a. construction before the district court and it does not press for such a construction here. Its argument therefore fails. Because the Asserted Claims make no mention of employing a computer or any other physical device, they are so broad as to read on an individual performing the claimed steps mentally or with pencil and paper. Just as we have held that complex details from the specification cannot save a claim directed to an abstract idea that recites generic computer parts, the Gregory Patents’ incorporation of software code cannot save claims that lack any computer implementation at all. See Accenture, 728 F.3d at 1345 (“[T]he complexity of the implementing software or the level of detail in the specification does not transform a claim reciting only an abstract concept into a patent-eligible system or method.”).

For this reason, we need not decide whether a computer-implemented version of the invention would not be “directed to” an abstract idea. And, for the same reasons, Synopsys cannot rely on our decisions in Enfish and McRO to support the patentability of the Asserted Claims. In Enfish, we held that claims “directed to a specific improvement to the way computers operate” to store and retrieve data were not unpatentably abstract. 822 F.3d at 1336. The claims were not simply drawn to a disembodied data table. See id. at 1337 (“Here, the claims are not simply directed to any form of storing tabular data, but instead are specifically directed to a self-referential table for a computer database.” (emphasis in original)). In McRO, we similarly held that claims that recited “a specific asserted improvement in computer animation” were not directed to an unpat-entable abstract idea. 2016 WL 4896481, at *8. By their terms and the district court’s unchallenged constructions, the Asserted Claims do not involve the use of a computer in any way. See J.A. 2080 (Synopsys’ counsel stating that “computers aren’t called out” in representativé claim 1); Oral Argument Tr. 12:26-12:48 (Synopsys’ counsel conceding that the claims do not “speak[ ]” in terms of using a computer the way the specification does). The Asserted Claims thus cannot be characterized as an improvement in computer technology.

That a human circuit designer may not use the specific method claimed when translating a functional description of a logic circuit into a hardware component description of the logic circuit as Synopsys contends does not change this result. Indeed, the Supreme Court rejected this argument in Gottschalk. There, the Court reviewed a claimed “method for converting binary-coded decimal (BCD) numerals into pure binary numerals.” Gottschalk, 409 U.S. at 64, 93 S.Ct. 253. It recognized that the claimed method had been designed for use on a computer and “varie[d] the ordinary arithmetic steps a human would use by changing the order of the steps, changing the symbolism for writing the multiplier used in some steps, and by taking subtotals after each successive operation.” Id. at 67, 93 S.Ct. 253. It found that the claimed method, which “c[ould] be performed without a computer,” was nonetheless not patent-eligible. Id.

Synopsys’ argument that “[t]he [Ajsserted [Cjlaims ... do not preempt all conversions” from functional descriptions of logic circuits to hardware component descriptions of logic circuits, Appellant’s Opening Br. 18 (emphasis in original), likewise misses the mark. “While preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015). “Where a patent’s claims are deemed only to disclose patent ineligible subject matter under the Mayo framework, as they are in this ease, preemption concerns are fully addressed and made moot.” Id.

The district court did not define the abstract idea of the Asserted Claims. Sy-nopsys likewise makes no proposal. Mentor Graphics argues that the Asserted Claims are directed to the abstract idea of “translating a functional description of an existing, intangible logic element into its corresponding assignment-condition description, and then into yet another abstract description of the same logic element.” Appellee’s Br. 28-29.

We recognize that defining the precise abstract idea of patent claims in many cases is far from a “straightforward” exercise. DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014). But, here, the Asserted Claims are drawn to the abstract idea of: translating a functional description of a logic circuit into a hardware component description of the logic circuit. As detailed above, this translation is a mental process. In contrast to Mentor Graphics’ articulation of the abstract idea, which largely restates representative claim 1 in different words, we believe our definition more accurately captures the “basic thrust” of the Asserted Claims. BASCOM Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1348 (Fed. Cir. 2016). And, it is wholly consistent with the Gregory Patents’ own descriptions of the invention, as laid out in the Abstract, specification, and claims:

• “A method and system are provided for generating a logic network using a hardware independent description means.” '841 Patent, Abstract.
• “This invention relates generally to methods and systems used to convert a hardware language description to a logic circuit....” Id. at 1:30-32.
• “A method for converting a hardware independent user description of a logic circuit ,.. into logic circuit hardware components.... ” Id. at 62:61-65.

Having now defined the abstract idea of the Asserted Claims we turn to the second step of the Alice analysis.

II. Alice Step 2: Do the Asserted Claims include an inventive concept?

In Alice, the Supreme Court described an “inventive concept” as “an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’ ” Alice, 134 S.Ct. at 2355 (quoting Mayo, 132 S.Ct. at 1294) (alteration in original). Synopsys equates the inventive concept inquiry with novelty and contends that the Asserted Claims contain an inventive concept because they were not shown to have been anticipated by (35 U.S.C. § 102) or obvious over (35 U.S.C. § 103) the prior art. See Appellant’s Opening Br. 43 (“[T]he district court ignored the fact that the methods in the asserted claims of the Gregory patents were entirely novel solutions and could not be found anywhere in the prior art.”). That position misstates the law. It is true that “the § 101 patent-eligibility inquiry and, say, the § 102 novelty inquiry might sometimes overlap.” Mayo, 132 S.Ct. at 1304. But, a claim for a new abstract idea is still an abstract idea. The search for a § 101 inventive concept is thus distinct from demonstrating § 102 novelty.

That being said, the contours of what constitutes an inventive concept are far from precise.

In DDR Holdings, we held that claims “directed to systems and methods of generating a composite web page that combines certain visual elements of a ‘host’ website with content of a third-party merchant” contained the requisite inventive concept. 773 F.3d at 1248. We explained that the claims at issue involved a technological solution that overcame a specific challenge unique to the Internet. Id. at 1259. This distinguished the claims at issue from those claims found unpatentable in earlier cases. Id. And, it ensured that the claims satisfied the Alice Step 2 inquiry under any conceivable articulation of the claims’ underlying abstract idea. Id. at 1257.

In BASCOM, we likewise held that claims “directed to filtering content on the Internet” contained an inventive concept. 827 F.3d at 1348. We recognized that “the limitations of the claims, taken individually, recite generic computer, network and Internet components, none of which is inventive by itself.” Id. at 1349. We explained, however, that “an inventive concept can be found in the non-conventional and non-generic arrangement of known, conventional pieces.” Id. at 1350. We found that the claims at issue contained just such an inventive arrangement through “the installation of a filtering tool at a specific location, remote from the end-users, with customizable filtering features specific to each end user.” Id. The claimed custom filter could be located remotely from the user because the invention exploited the ability of Internet service providers to associate a search request with a particular individual account. Id. This technical solution overcame defects in prior art embodiments and elevated an otherwise abstract idea to a patentable invention. Id.

The Asserted Claims, in contrast to those at issue in DDR Holdings and BAS-COM, contain no such technical solution. To the extent the Asserted Claims add anything to the abstract idea (i.e., translating a functional description of a logic circuit into a hardware component description of the logic circuit), it is the use of assignment conditions as an intermediate step in the translation process. See Appellant’s Reply Br. 21 (“The use of assignment conditions in converting user descriptions into specific logic circuits is, without question, an inventive concept.”). But, given that the claims are for a mental process, assignment conditions, which merely aid in mental translation as opposed to computer efficacy, are not an inventive concept that takes the Asserted Claims beyond their abstract idea. Unlike the claims at issue in DDR Holdings and BASCOM, the Asserted Claims do not introduce a technical advance or improvement. They contain nothing that “amounts to significantly more than a patent upon the [abstract idea] itself.’ ” Alice, 134 S.Ct. at 2355 (citation omitted).

CONCLUSION

Whether different claims otherwise supported by the written description of the Gregory Patents directed to a computerized design tool that uses assignment conditions to more efficiently identify and generate logic circuits from a functional description could pass muster under § 101 is not before us. Our analysis focuses, as it must, on the Asserted Claims. Those claims are directed to an abstract mental process and contain no inventive concept. The claims are therefore invalid under 35 U.S.C. § 101. We affirm the district court’s grant of summary judgment.

AFFIRMED

Costs

Each party shall bear its own costs.

      . For example, the claim the parties identify as representative calls for generating a schematic or netlist representation of a level sensitive latch when given a description of the logic operation of a level sensitive latch. '841 patent, 62:61-63:12.

      . Unless otherwise noted, all references to the common specification will be to the specification of the '841 patent. Equivalent disclosures can be found in the '318 and '488 patents.

      .A “logic circuit” is an electrical circuit where all signals take the form of a logic high (also known as "true” and often represented by the binary digit "1”) or a logic low (also known as "false” and often represented by the binary digit "0”).

      . The parties agree that claim 1 of the '841 patent is representative of all claims on appeal.

      . In the field of binary logic to which the Gregory Patents belong, data is represented by "bits.” A bit can either equal 1 (also known as logic "true”) or 0 (also known as logic "false”).

      . The district court construed "asynchronous” to mean "not triggered by a clock signal.” Synopsys, Inc. v. Mentor Graphics Corp., No., C 12-6467 MMC, 2013 WL 59,57866, at *4 (N.D. Cal. Nov. 7, 2013) (Claim Construction Order). "Asynchronous” is the opposite of "synchronous,” which the district court construed to mean "triggered by a clock signal.” Id. The example HDL code is asynchronous, because it does not take a clock signal as an input.

      . symbolizes a logic AND. The logic AND of two variables is true if, and only if, both variables are true. If either variable is false, the logic AND of the variables is also false.

      . The asynchronous load function and the asynchronous data function are “non-constant” (i.e., variable) because each can change— COND in the case of the asynchronous load function and COND*D in the case of the asynchronous data function. Claim 1 does not specify what component is generated if either the asynchronous load function or the asynchronous data function (or both) were constant—for example, if one of the functions was always true (e.g., AL(Q) =1).

      . Perhaps more notably, none of Synopsys’ proposed constructions required the use of a computer or any type of hardware. J.A. 2395-422. In particular, representative claim l’s "generating a ... latch” means, not creating the physical component, but generating a representation (e.g,, description, schematic, etc.) of such a component.

      . In that same order, the court stayed further proceedings on, the '420 patent in view of a then-pending inter partes review. The Patent Trial and Appeal Board (Board) subsequently found the challenged claims of the '420 patent unpatentable as obvious. Mentor Graphics Corp. v. Synopsys, Inc., IPR2014-00287, 2015 WL 3637569 (PTAB June II, 2015). We recently affirmed the Board’s decision. Synop-

        sys, Inc. v. Mentor Graphics Corp., No. 2015-2056, — Fed.Appx. -, 2016 WL 5899745 (Fed. Cir. Oct. 11,2016).

      . Bilski v. Kappos, 561 U.S. 593, 130 S.Ct. 3218, 177 L.Ed.2d 792 (2010).

      .While Synopsys repeatedly describes the claimed methods as implemented on a computer, see, e.g., Appellant's Opening Br. 12 ("The patents claim methods for a computer running specialized software to take 'flow control statements' and ‘directive statements’ in a user’s description written in HDL,'and convert them into ‘assignment conditions’ for 'hardware description functions,’ which, in turn, are used by the computer to determine the appropriate hardware and connections.” (citations omitted)), its counsel recognized at oral argument that the words of the Asserted Claims do not require a computer and he referred instead to the patent specification and extrinsic evidence that a human would not use the methods as claimed. Oral Argument Tr. 12:26-13:01.

      . Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016).

      . McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 2016 WL 4896481 (Fed. Cir. Sept. 13, 2016).

      . The inventive concept inquiry as it relates to the Asserted Claims thus differs from the one we often face in cases under § 101, i.e., whether the claimed invention is merely an abstract idea running on a general purpose computer as opposed to a concrete improvement in how the computer itself functions.


source: Caselaw Access Project

author: SENTELLE, Senior Circuit Judge:

license: Public Domain

text:
    CALPORTLAND COMPANY, INC., Petitioner v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION and Secretary of Labor, ON BEHALF OF Jeffrey PAPPAS, Respondents
    No. 16-1094
    United States Court of Appeals, District of Columbia Circuit.
    Argued October 6, 2016
    Decided October 20, 2016

      Brian P. Lundgren argued the, cause and filed the briefs for petitioner. John M. Payne and Selena C. Smith entered appearances.
    Edward Waldman, Attorney, U.S. Department of Labor, argued the cause for respondent. With him on the brief was W. Christian Schumann, Counsel. John T. Sullivan, Attorney, Mine Safety and Health Review Commission, entered an appearance.

      Before: HENDERSON and GRIFFITH, Circuit Judges, and SENTELLE, Senior Circuit Judge.
   SENTELLE, Senior Circuit Judge:

CalPortland Company, Inc. (“CalPort-land”) petitions for review of a decision by the Federal Mine Safety and Health Review Commission (“Commission”) ordering CalPortland to temporarily reinstate Jeffrey Pappas, pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30. U.S.C. § 815(c)(2), pending final order on Pappas’s underlying discrimination complaint currently pending before the Commission. We have jurisdiction over this petition pursuant to the collateral order doctrine and, because we conclude that Pappas was an “applicant for employment” who was not eligible for temporary reinstatement,. we grant the petition for review and vacate the Commission’s decision and order.

I.

“Congress adopted the Mine Act ‘to protect the health and safety of the Nation’s ... miners,’ ” Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 202, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994) (quoting 30 U.S.C. § 801(g)), by “strengthen[ing] and streamlining] health and safety enforcement requirements” at the Nation’s mines, id. at 211, 114 S.Ct. 771. To accomplish its goals, the Mine Act “charges two separate agencies with complementary pol-icymaking and adjudicative functions.” Prairie State Generating Co. LLC v. Sec’y of Labor, 792 F.3d 82, 85 (D.C. Cir. 2015). The Secretary of Labor (“Secretary”), acting through the Department of Labor’s Mine Safety and Health Administration (“MSHA”), “sets regulatory standards of mine safety, conducts regular mine inspections, and issues citations and orders in response to violations.” Id. (citing 29 U.S.C. § 557a; 30 U.S.C. §§ 813, 814; Thunder Basin, 510 U.S. at 202-04 & n.5, 114 S.Ct. 771). “The Commission, an adjudicatory body established as independent of the Secretary, reviews challenges to MSHA’s actions.” Id. at 85-86 (citing 30 U.S.C. §§ 815(d), 823).

Relevant to this case, the Mine Act also includes a whistleblower provision, 30 U.S.C. § 815(c), which prohibits a mine operator from discriminating against a miner or interfering with a miner’s statutory rights because the miner engaged in protected activity. Leeco, Inc. v. Hays, 965 F.2d 1081, 1083 (D.C. Cir. 1992); Council of S. Mountains, Inc. v. FMSHRC, 751 F.2d 1418, 1420-21 (D.C. Cir. 1985). Section 105(c) establishes procedures for the filing and investigation of complaints made by “[a]ny miner or applicant for employment” and authorizes the Commission to adjudicate contested complaints. See 30 U.S.C. § 815(c)(2)—(3); Simpson v. FMSHRC, 842 F.2d 453, 456 n.3 (D.C. Cir. 1988).

At the center of this case is section 105(c)(2)’s‘ temporary reinstatement provision. “Because a complaining ... miner ‘may not be in the financial position to suffer even a short period of unemployment or reduced income pending resolution of the discrimination complaint,’ ” Cobra Nat. Res., LLC v. FMSHRC, 742 F.3d 82, 84 (4th Cir. 2014) (quoting S. Rep. No. 95-181, at 37 (1977)), if the Secretary finds that a discrimination complaint was “not frivolously brought,” the Commission “shall order the immediate reinstatement of the miner pending final order on the complaint,” 30 U.S.C. § 815(c)(2). Although section 105(c) protects the rights of both miners and applicants for employment, the temporary reinstatement remedy is limited to miners. See id. § 815(c)(1)—(3); Piper v. KenAmerican Resh Inc., 35 FMSHRC 1969, 1972 & n.2 (July 3, 2013). Accordingly, whether a complainant is a “miner” or an “applicant for employment”,is a threshold issue that must be addressed before determining a complainant’s entitlement to temporary reinstatement. See Young v. Lone Mountain Processing, Inc.,. 20 FMSHRC 927, 932 n.5 (Sept. 4, 1998).

II.

Beginning 'in or around 1999, Jeffrey Pappas worked as a miner at the Oro Grande cement plant in San Bernardino County, California. Martin Marietta-Materials, Inc., which owned the plant through a subsidiary named Riverside Cement Company, was Pappas’s employer. In 2014, while working for Martin Marietta at the Oro Grande plant, Pappas notified management about a supervisor’s potentially unsafe directions. When management failed to fully address his concerns, Pappas notified a MSHA inspector, who investigated and issued several citations to Martin Marietta for safety violations. After MSHA issued these citations to Martin Marietta, Pappas’s relationship with his managers and colleagues at the Oro Grande plant deteriorated, culminating in his discharge in March 2014. Pappas filed a section 105(c) discrimination complaint against Martin Marietta in April 2014 that resulted in a Commission-approved settlement reinstating Pappas to his former position at Oro Grande. Upon his return to work, his colleagues and direct supervisor harassed Pappas about his discrimination complaint and his prior safety concerns. He asked the plant’s upper management, including Martin Marietta’s Human Resources manager Jamie Ambrose, to intervene and stop the harassment, but Martin Marietta’s management took no action.

On or around June 30, 2015, CalPortland executed a limited asset purchase agreement with Martin Marietta to acquire the Oro Grande plant where Pappas worked and three related facilities, effective October 1, 2015. It is undisputed that Pappas was, never employed by CalPortland, as CalPortland’s purchase agreement with Martin Marietta did not include Martin Marietta’s existing labor force and Cal-Portland did not agree to hire any of Martin Marietta’s hourly employees in the purchase agreement.

To ensure that it could take control of the Oro Grande plant in October 2015 without, shutting-down the kiln, CalPort-land began the staffing process early. In mid-August 2015, prior to CalPortland’s effective acquisition of the Oro Grande plant, CalPortland contacted Jamie Am-brose, Martin Marietta’s Human Resources manager, for advice on hiring decisions. Soon thereafter, Ambrose was offered and accepted the Human Resources manager position at CalPortland. Because of her prior employment with Martin Marietta, Ambrose knew about Pappas’s previous section 105(c) complaint.

In mid-September 2015, CalPortland invited all of the employees from the four facilities covered by the asset purchase agreement, including the employees at the Oro Grande plant, to apply for employment with CalPortland. CalPortland did not advertise these positions to the general public and nearly all of the existing Martin Marietta employees applied. CalPortland made its hiring'decisions on September 26, 2015, and extended employment offers to approximately 115 out of 130 applicants, with approximately 100 to 105 of those offered employment accepting positions with CalPortland. Pappas was one of the applicants from the Oro Grande plant who was not offered employment by CalPort-land. On September 28, 2015, two days before CalPortland’s acquisition of thé Oro Grande plant, Martin Marietta told those miners who were not offered employment by CalPortland to leave the plant immediately and not to return for their shifts on the following two days. These individuals, including • Pappas, were paid by Martin Marietta through September 30, 2015, and given severance packages from Martin Marietta. Then, on October 1, 2015, Cal-Portland acquired the Oro Grande plant.

After CalPortland did not hire him, Pap-pas filed a section 105(c) complaint against CalPortland, and on December 8, 2015, the Secretary, on behalf of Pappas, filed an application for temporary-reinstatement. Notably, the Secretary sought an order directing CalPortland “to hire” Pappas. -In support of the application, the Secretary relied on a declaration from a MSHA .investigator stating that after Martin Marietta’s employees were “terminated” and “CalPortland invited the existing Oro Grande employees to apply for new positions with CalPortland,” “CalPortland decided not to hire Mr. Pappas” because of his April 2014 discrimination complaint against Martin Marietta, (emphasis added).

Focusing on Pappas’s employment at the Oro Grande plant and Martin Marietta’s active role in CalPortland’s hiring decisions, the Administrative Law Judge concluded that Pappas was a “miner” for purposes of section 105(c) and approved the Secretary’s application on January 12, 2016. See Pappas v. CalPortland Co., 38 FMSHRC 53, 58-61, 66 (Jan. 12, 2016); see also 29 C.F.R. § 2700.45(c) (allowing operator to request hearing before an ALJ following receipt of Secretary’s application for temporary reinstatement). The Commission, in a 4-1 decision, affirmed the ALJ’s decision on February 8, 2016. See Pappas v. CalPortland Co., 38 FMSHRC 137 (Feb. 8, 2016); see also 29 C.F.R. § 2700.45(f) (describing procedure for review by the Commission of an ALJ’s temporary reinstatement order).

In affirming the ALJ’s decision, the Commission found that CalPortland’s hiring process, which the Commission characterized as “miner retention decisions” or “rehiring” decisions, occurred while Pap-pas was “[ujnquestionably” a “miner” at the Oro Grande plant. See Pappas, 38 FMSHRC at 141-42. Based on the fact that Jamie Ambrose, who was aware of Pappas’s prior section 105(c) complaint, was involved in CalPortland’s hiring process, see id., the Commission held that CalPortland’s “decision-making process ,.. was done in conjunction with Martin Marietta,” id. at 142; see also id. at 144 (“Pappas has alleged that he was the victim of a joint decision-making, process involving Martin Marietta and CalPort-land.”). The Commission concluded that because “[tjemporary reinstatement was designed to maintain the status quo while miners proceed with their discrimination claims[,j [pjermitting Pappas, who had worked at the Oro Grande cement plant for 16 years, to continue working at that plant pending the resolution of this matter, is consistent with this underlying Congressional intent.” Id. at 144.

On February 22, 2016, the Commission denied CalPortland’s petition for reconsideration. CalPortland filed its petition for review with this Court on March 8, 2016. On appeal, CalPortland does not challenge the Commission’s determination that Pap-pas’s complaint was not frivolously brought, see id. at 144-47, but argues that the Commission erred in holding that Pap-pas was a “miner” rather than an “applicant for employment” for purposes of section 105(c)(2)’s temporary reinstatement provision.

III.

While neither party disputes that we have jurisdiction over a section 105(c)(2) temporary reinstatement order, we have “a special obligation” to satisfy ourselves of our own jurisdiction. Micei Int’l v. Dep’t of Commerce, 613 F.3d 1147, 1151 (D.C. Cir. 2010) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986)).

A.

Section 106(a) of the Mine Act provides that any person adversely affected by “an order” of the Commission may obtain judicial review of “such order.” 30 U.S.C. § 816(a)(1). Although the Mine Act refers to an “order” rather than to a “final order,” we have held that “the Mine Act limits appellate review to final agency action.” Meredith v. FMSHRC, 177 F.3d 1042, 1047-48 (D.C. Cir. 1999). Two conditions must be satisfied for an action to be considered “final”:

First, the action must mark the consummation of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.

U.S. Army Corps of Eng’rs v. Hawkes Co., — U.S. -, 136 S.Ct. 1807, 1813, 195 L.Ed.2d 77 (2016) (quoting Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)). In light of the fact that “[a] final order need not necessarily be the very last order,” Net-Coalition v. SEC, 715 F.3d 342, 351 (D.C. Cir. 2013) (citation and internal quotation marks omitted), “there is a close issue of whether [a section 105(c)(2) temporary reinstatement] order is a final one for purposes of appellate review.” Jim Walter Res., Inc. v. FMSHRC, 920 F.2d 738, 744 (11th Cir. 1990); see also Cobra, 742 F.3d at 93-96 (Agee, J., dissenting) (concluding that a temporary reinstatement order is “a final order for purposes of appeal”); N. Fork Coal Corp. v. FMSHRC, 691 F.3d 735, 738-39 (6th Cir. 2012) (considering appeal from temporary reinstatement order without analyzing jurisdiction and noting that parties may seek judicial review of the Commission’s “final order” (citing 30 U.S.C. § 816(a))). But given the “pragmatic and flexible nature” of the finality inquiry, Rhea Lana, Inc. v. Dep’t of Labor, 824 F.3d 1023, 1027 (D.C. Cir. 2016) (citations and internal quotation marks omitted), we need not directly resolve this issue because, as explained below, we conclude that the Commission’s order directing Cal-Portland to hire Pappas is immediately appealable pursuant to the collateral order doctrine.

B.

Courts of appeals “have jurisdiction of appeals from all final decisions of the district courts of thé United States, ... except where a direct review may be had in the Supreme Court.” 28 U.S.C. § 1291 (emphasis added). But the Supreme Court has given 28 U.S.C. § 1291 “a ‘practical rather than a technical construction,’ ” meaning that “the statute encompasses not only judgments that ‘terminate an action,’ but also a ‘small class’ of collateral rulings that, although they do not end the litigation, are appropriately deemed ‘final.’” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). We have also explained that “[t]he collateral order doctrine extends beyond the confínes of 28 U.S.C. § 1291 to encompass the principle of administrative finality contained in section 106(a) of the Mine Act.” Meredith, 177 F.3d at 1050. We are mindful, however, that the collateral order doctrine is “a limited exception to the final judgment rale,” United States v. Fokker Servs. B.V., 818 F.3d 733, 747 (D.C. Cir. 2016) (citing Cohen, 337 U.S. 541, 69 S.Ct. 1221), that “must 'never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered,’ ” Mohawk Indus., 558 U.S. at 106, 130 S.Ct. 599 (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994)).

To come within the scope of the collateral order doctrine, an order must: “(i) conclusively determine! ] a disputed question; (ii) resolve! ] an important issue completely separate from the merits of the action; and (iii) [be] effectively unreviewable on appeal from a final judgment.” Meredith, 177 F.3d at 1048 (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). Each of these conditions must be satisfied for an order “to qualify as an immediately-ap-pealable collateral order.” Fokker Servs., 818 F.3d at 748; see also Mohawk Indus., 558 U.S. at 107-08, 130 S.Ct. 599.

Although we have applied the collateral order doctrine to issues arising under section 105(c) of the Mine Act, see Meredith, 177 F.3d at 1048-52, we have not determined whether a section 105(c)(2) temporary reinstatement order is subject to the collateral order doctrine. The Seventh and Eleventh Circuits have determined that such orders are reviewable under the collateral order doctrine, Vulcan Constr. Materials, L.P. v. FMSHRC, 700 F.3d 297, 300 (7th Cir. 2012); Jim Walter, 920 F.2d at 744-45 (determining in the 11th Circuit), but the Fourth Circuit has reached the opposite conclusion, Cobra, 742 F.3d at 88-92. For the following reasons, we conclude that all three, requirements are satisfied in this case and, therefore, the Commission’s temporary reinstatement order is an immediately appealable order under the collateral order doctrine.

First, the Commission’s order directing CalPortland to hire Pappas conclusively determined the temporary reinstatement issue. To satisfy the conclusiveness condition, an order must be “a fully consummated decision,” Meredith, 177 F.3d at 1052 (quoting Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)), that “conclusively and finally determined” the issue, In re Sealed Case (Med. Records), 381 F.3d 1205, 1209 (D.C. Cir. 2004) (citation and internal quotation marks omitted). The Commission’s temporary reinstatement order “is a ‘fully consummated’ decision, and there are literally ‘no further steps’ that [CalPortland] can take in order to avoid the Commission’s order at the agency level.” Jim Walter, 920 F.2d at 744 (quoting Mitchell v. Forsyth, 472 U.S. 511, 527, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). Even if the temporary reinstatement order was “technically subject to modification, ... [‘]there is no basis to suppose that the [Commission] contemplated any reconsideration of [the] decision.'” Obaydullah v. Obama, 609 F.3d 444, 447 (D.C. Cir. 2010) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12-13, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). In fact, the Commission denied CalPortland’s petition for reconsideration on February 22, 2016, which suggests that its decision was not merely “tentative or subject to revision.” Sealed Case, 381 F.3d at 1209 (citation and internal quotation marks omitted).

Second, the Commission’s order satisfies the separability condition. A temporary reinstatement order has “no bearing” on the ultimate resolution of a complaint, as the complainant’s discrimination case proceeds regardless of the Commission’s holding on the temporary reinstatement application and the temporary reinstatement order does not affect the merits decision. Cobra, 742 F.3d at 98 (Agee, J., dissenting). This case also concerns a threshold issue— whether Pappas was a “miner” or an “applicant for employment” for purposes of his complaint—that is “completely independent from the merits of whether [Cal-Portland] committed the acts charged in the complaint.” See Meredith, 177 F.3d at 1051-52. Because both miners and applicants for employment are protected by the Act but only miners are eligible for temporary reinstatement, whether Pappas was a miner or an applicant is relevant only to the temporary reinstatement issue and need not be addressed in the merits decision.

Third, temporary reinstatement orders involve important interests that will be effectively unreviewable on appeal from a final order on the complaint. The “crucial question” in analyzing this condition is “whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders.” Mohawk Indus., 558 U.S. at 108, 130 S.Ct. 599. During the period between the issuance of the temporary reinstatement order and the final order on the complaint—in this case, the ALJ’s decision issued on January 12, 2016, and the underlying merits hearing on Pappas’s complaint is scheduled for December 6-9, 2016—an operator may be unnecessarily forced to pay wages and employ a worker who has no meritorious claim with no procedure available to recoup these expenses. See Cobra, 742 F.3d at 95, 99 (Agee, J. dissenting). Miners have even more significant interests at stake. A miner, who “may not be in the financial position to suffer even a short period of unemployment or reduced income pending resolution of the discrimination complaint,” id. at 96 (quoting S. Rep. No. 95-181, at 37 (1977)), may suffer irreparable financial harm if his right to appeal from an adverse decision is foreclosed. Denying immediate review of an order on temporary reinstatement may also have a chilling effect on a miner’s ydllingness to report safety complaints. See id. at 99. And, because an appeal from the final order on the complaint need not reach issues concerning temporary reinstatement, the parties would “effectively lose any opportunity for a judicial hearing of [their] claims.” Jim Walter, 920 F.2d at 745; see also Cobra, 742 F.3d at 98 (Agee, J., dissenting) (explaining that “any issues related to the temporary order [are] effectively moot” when the Commission, issues the final order on the complaint). This lack of appealability is particularly concerning when, as here, there is a dispute over the threshold issue of whether a complainant is eligible for temporary reinstatement. See fileredith, 177 F.3d at 1052 (“Once administrative proceedings have run their course, the interest in avoiding them has been vitiated and cannot be vindicated.”) (citation omitted).

Because the Commission’s temporary reinstatement order satisfies the requirements of the collateral order doctrine, we have jurisdiction to hear this petition for review.

IV.

As noted, CalPortland timely petitioned for review, arguing that the Commission erred when it affirmed the ALJ’s decision ordering CalPortland to “reinstate” Pappas even though Pappas had never been employed by CalPortland. We review the Commission’s legal conclusions de novo and its findings of fact for substantial evidence. Am. Coal Co. v. FMSHRC, 796 F.3d 18, 23 (D.C. Cir. 2015).

A.

The Secretary’s reasonable interpretation of the Mine Act is accorded deference by both the Commission and this Court under the familiar two-step Chevron standard. Am. Coal, 796 F.3d at 23-24 (citations omitted); see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Secretary’s litigating position before the Commission, which “is as much an exercise of delegated lawmaking powers as is the Secretary’s promulgation of a ... health and safety standard,” is also entitled to Chevron deference. Am. Coal, 796 F.3d at 24 (citations and internal quotation marks omitted).

“Under the first step of Chevron we consider whether Congress has unambiguously addressed the question.” Id. at 23-24. As the Supreme Court has made clear, “[a]gencies exercise discretion only in the interstices created by statutory silence or ambiguity; they must always give effect to the unambiguously expressed intent of Congress.” Util. Air Regulatory Grp. v. EPA, — U.S. -, 134 S.Ct. 2427, 2445, 189 L.Ed.2d 372 (2014) (citation and internal quotation marks omitted). Thus, “[a]n agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.” Id. If, however, the Mine Act is “silent or ambiguous with respect to the specific issue,” Sec’y of Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003) (citation and internal quotation marks omitted), “we ask whether the Secretary’s interpretation is reasonable,” Am. Coal, 796 F.3d at 24.

B.

In relevant part, section 105(c)(2) of the Mine Act provides:

Any miner or applicant for employment or representative of miners who believes that he has been discharged, interfered with, or otherwise discriminated against by any person in violation of this subsection may ... file a complaint with the Secretary alleging such discrimination .... [I]f the Secretary finds that such complaint was not frivolously brought, the Commission, on an expedited basis upon application of the Secretary, shall order the immediate reinstatement of the miner pending final order on the complaint.

30 U.S.C. § 815(c)(2) (emphasis added). The parties do not dispute that section 105(c)(2)’s temporary reinstatement remedy is limited to “miners.” See Piper, 35 FMSHRC at 1972 & n.2. The question, therefore, is whether Pappas was a “miner” eligible for temporary reinstatement.

The Secretary argues that the term “miner” in section 105(c)(2) is ambiguous as it relates to Pappas. Specifically, the Secretary asserts that Pappas “was both a ‘miner’ and an ‘applicant for employment’ at the Oro Grande cement plant,” and contends that section 105(c)(2) does not address the question of whether a miner who applies for employment with the future operator of the mine at which the miner is working qualifies as a “miner” eligible for temporary reinstatement. Focusing on Pappas’s previous employment for Martin Marietta, the Secretary argues that Pappas can be “reinstated” to a position at the Oro Grande plant. The Commission similarly concluded that Pappas was eligible for temporary reinstatement because he was “[unquestionably” a miner “at the Oro Grande plant” when CalPort-land made its hiring decisions, Pappas, 38 FMSHRC at 141, and that permitting Pap-pas “to continue working at that plant” was consistent with the “underlying Congressional intent” in the Mine Act, id. at 144.

“To determine whether the meaning of a statutory provision is plain, the court’s analysis begins, with the most traditional tool of statutory construction, reading the text itself.” Wolf Run Mining Co. v. FMSHRC, 659 F.3d 1197, 1200 (D.C. Cir. 2011) (citation, internal quotation marks, and brackets omitted). In making this determination, we consider “the particular statutory language at issue, as well as the language and design of the statute as a whole.” Id. (citation and internal quotation marks omitted). “Ambiguity is a creature .not of definitional possibilities but of statutory context,” Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994) (citing King v. St. Vincent’s Hosp., 502 U.S. 215, 221, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991)), and “the presence of a difficult question of statutory construction does not necessarily render that provision ambiguous,” Meredith, 177 F.3d at 1053. In short, we defer to an agency’s interpretation of a statute “only when the devices of judicial construction have been tried and found to yield no clear sense of congressional intent.” Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600, 124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 446-48, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)).

The Mine Act broadly defines a “miner” as “any individual working in a coal or other mine,” 30 U.S.C. § 802(g), and Pap-pas was undeniably a “miner” for Martin Marietta at the Oro Grande plant during the relevant period. But this case concerns the use of the term “miner” in the specific context of section 105(c)(2)’s temporary reinstatement provision. Thus, the question at issue in this case is whether Pappas is a “miner” who is eligible for reinstatement. We conclude that Congress’s use of the word “reinstatement” in section 105(c)(2) provides a “clear sense of congressional intent” on this issue. See Gen. Dynamics, 540 U.S. at 600, 124 S.Ct. 1236.

To “reinstate” means to “restore [ ]someone ... to their [sic] former position,” The New OxfoRd American Dictionary 1428 (2d ed, 2005) (emphasis added); see also Webster’s Third New International Dictionary 1915 (1993) (“[T]o instate again[;] place again[ ] ' as in ... a former position[.]” (emphasis added)); Reinstate, Black’s Law Dictionary 1477 (10th ed. 2014) (“To place again in a former state or position; to restore....” (emphasis added)), and section 105(c)(2) explicitly ties “reinstatement” with the miner’s “former position.” See 30 U.S.C. § 815(c)(2) (stating that the Commission may require an offender to take affirmative action to abate a violation, “including ... the rehiring or reinstatement of the miner to his former position” (emphasis added)). We agree with the Commission that, “[a]s a purely logical and semantic matter, one cannot be ‘reinstated’ to a position he has never held,” Piper, 35 FMSHRC at 1972 n.2, and the Secretary acknowledges that the definition of reinstatement “may preclude an individual from being reinstated ‘to a position he never held.’ ”

In this case, it is undisputed that Pappas has never been employed by or worked for CalPortland; during the relevant time period, he was a miner employed by Martin Marietta. See, e.g., Pappas, 38 FMSHRC at 141-42 (finding that Pappas was a “miner” eligible for temporary reinstatement because he was “a ‘miner’ employed by Martin Marietta” when CalPortland decided not to hire him and he “experienced the effect of CalPortland’s decision not to hire him while he was still a miner working for Martin Marietta” (emphases added)). In a final decision, CalPortland, as the successor operator of the Oro Grande plant, could perhaps be ordered to instate Pappas if it was found to have violated the Mine Act when it failed to hire him, see 30 U.S.C. § 815(c)(2), but it cannot be ordered to “reinstate” Pappas to a position he never held at this preliminary stage in the proceedings. Id. (emphasis added). Furthermore, because Pappas was never employed by CalPortland, the involvement of Ambrose in CalPortland’s hiring process, and her subsequent employment with CalPortland, does not affect “the status of Mr. Pappas as an applicant for employment with CalPortland.” Pappas, 38 FMSHRC at 152 (Althen, dissenting). While allegations concerning Ambrose’s involvement in CalPortland’s hiring decisions could be evidence of CalPortland’s discrimination, they do not affect Pappas’s status as an applicant for employment for purposes of section 105(c)(2).

In an attempt to create an ambiguity in the statute, the Secretary relies on the fact that Pappas was a miner, not with Cal-Portland, but at the Oro Grande plant. The Secretary, however, fails to identify any language in the Mine Act suggesting that the temporary reinstatement provision applies to a physical location rather than to an employer. The Commission’s own precedent illustrates that this remedy applies to a specific employer, not to a mine. See Piper, 35 FMSHRC at 1972-73 (concluding that complainant “was not a mere ‘applicant’ for a position with Ken-American” because “[h]e had actively worked in KenAmerican’s mine” and the “genesis” of the complaint was the miner’s dismissal by KenAmerican (emphasis added)); Lone Mountain, 20 FMSHRC at 930 (holding that the complainant, who was a miner for Arch of Kentucky, “was not a complaining ‘miner’ for purposes of the Mine Act” and his complaint against Lone Mountain, which arose out of his application for employment with Lone Mountain). The mere fact, that Pappas may have been both a miner and an applicant for employment does not establish that he was a miner for purposes of his complaint against CalPortland. See, e.g., Sec’y of Labor v. Mullins, 888 F.2d 1448, 1452 (D.C. Cir. 1989) (“The fact that [the operator] also violated § 105(c) at an earlier point in time by interfering with Keene’s statutorily protected rights while he was, still a miner within the meaning of the Act does not insulate [the operator’s owner and president] from liability for subsequently-interfering with Keene’s statutorily protected rights in his capacity as an applicant for employment.” (emphasis added)).

Applying section 105(c)(2) to the facts of this case, because he had “no prior work history” and “no prior relationship” with CalPortland, cf Piper, 35 FMSHRC .at 1973, we conclude that Pappas was an applicant for employment for purposes of his discrimination complaint against Cal-Portland. Although Pappas was obviously a “miner” in that he was employed by Martin Marietta at the Oro Grande plant, both CalPortland and the Secretary agree that Pappas applied for a new position at Cal-Portland and the alleged discriminatory act was CalPortland’s failure to hire him. The literal fact that Pappas had been employed as a miner for a different employer at the Oro Grande plant does not distinguish him from any other “applicant for employment” with CalPortland for purposes of section 105(c)(2). Therefore, Pap-pas was an “applicant for employment” and was not eligible for temporary reinstatement.

⅝ H* ⅜

For the reasons stated, “regular interpretive method leaves no serious question” as to congressional intent in this case. Gen. Dynamics, 540 U.S. at 600, 124 S.Ct. 1236. The text and structure of section 105(c)(2) of the Mine Act preclude the Commission from directing an owner or operator to temporarily “reinstate” a . complainant who has never been employed by that owner or operator. Because Pappas was an “applicant for employment” who was not eligible for temporary reinstatement pending final order on his complaint, we grant CalPort-land’s petition for review and vacate.the Commission’s decision and order.

So ordered.

      . In his discrimination complaint filed with the MSHA, Pappas named "Riverside Cement” and "Martin Marietta” as the respondents, alleging a discriminatory "layoff/refusal of employment”; however, the Secretary ultimately sought an application for temporary reinstatement against CalPortland.