author: LOURIE, Circuit Judge. PLAGER, Circuit Judge,

text:
    HUSKY INJECTION MOLDING SYSTEMS LTD., Appellant v. ATHENA AUTOMATION LTD., Cross-Appellant
    2015-1726
    2015-1727
    United States Court of Appeals, Federal Circuit.
    Decided: September 23, 2016

      Matthew L. Cutler, Harness, Dickey & Pierce, PLC, St. Louis, MO, argued for appellant.
    Marshall John Schmitt, Michael Best & Friedrich, LLP, Chicago, IL, argued for cross-appellant. Also represented by Gilberto Eduardo Espinoza, Martin L. Stern.
    Joseph Matal, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, argued for intervenor Michelle K. Lee. Also represented by Nathan K. Kelley, Scott Weidenfellbr.
    Before LOURIE, PLAGER, and STOLL, Circuit Judges.
   Opinion concurring in part and dissenting in part filed by Circuit Judge PLAGER.

LOURIE, Circuit Judge.

Husky Injection Molding Systems Ltd. (“Husky”) appeals from the U.S. Patent and Trademark Office Patent Trial and Appeal Board’s (“the Board”) inter partes review decision finding claims 1, 4-16, 18, and 20-22 of U.S. Patent 7,670,536 (“the ’536 patent”) anticipated. Athena Automation Ltd. v. Husky Injection Molding Sys. Ltd., No. 201300290, 2014 WL 5454543, at *23 (P.T.A.B. Oct. 23, 2014) (“Final Written Decision”). Athena Automation Ltd. (“Athena”) cross-appeals from the Board’s decision finding claims 2, 3,17, and 19 of the ’536 patent not anticipated. Athena Automation Ltd. v. Husky Injection Molding Sys. Ltd., No. 2013-00290 (P.T.A.B. Feb. 23, 2015) (decision on rehearing); see Joint App. (“J.A.”) 56-65. For the reasons that follow, we dismiss Husky’s appeal for lack of jurisdiction; we vacate the Board’s decision on incorporation by reference and its finding of no anticipation with respect to claims 2, 3, 17, and 19; and we remand for further consideration of those latter claims.

BACKGROUND

The ’536 patent discloses a molding machine having a clamp assembly comprising, inter alia, a stationary platen 120, a movable platen 122, tie bars 121, tie bar locks 130 that couple the tie bars to the movable platen, and clamp actuators 128 that supply a clamping force to the tie bars. ’536 patent col. 8 1. 58-col. 9 1. 46. Figure 2a, reproduced below, depicts the clamp assembly.

Id. fig.2a. When the two platens, each attached to a mold support structure, 124, 126, are brought together, a mold cavity is created “in which a molded article may be molded ... once the extruder 104 injects, under pressure, the injectable molding material into the mold cavity.” Id. col. 9 11. 6-10; id. col. 911. 20-24.

The claims of the ’536 patent specifically recite a lock and a method for using that lock to couple the tie bars 121 to the movable platen 122. Id. col. 9 11. 29-31. The lock has two interlocking components, one associated with the tie bar (lock member 510) and one with the platen (complementary lock member 512). Id. col. 11 11. 55-58; id. col. 11 1. 67-col. 12 1. 3. The complementary lock member 512 comprises a sleeve 230 rotatably mounted to a bore (hole) in the corner of the movable platen, which receives tie rod 121 and its lock member 510. Id, col. 12 11. 6-21. The two lock members engage, and the teeth of each lock member align, when sleeve 230 is rotated. Id. As shown below, Figure 5b reflects the unlockable condition, and Figure 6b reflects the lockable condition.

Id. fíg.5b, fig.6b. Once the two lock members engage, the clamp on the stationary platen applies a clamping force, locking the two platens together and assembling the mold. Id., col. 13 11,12-21.

Husky’s former owner and president (“Schad”) is also a co-inventor of the ’536 patent. In 2007, Schad assigned the ’536 patent to Husky. Shortly thereafter, Schad sold Husky to a private equity group, and left to form Athena. In 2012, Athena filed a petition for inter partes review at the Board, challenging the patentability of all 22 claims in the ’536 patent. Athena asserted, inter alia, that various claims of the ’536 patent were anticipated either by U.S. Patent Application 2004/0208950 (“Glaesener”) in combination with its incorporation by reference of U.S. Patent 5,753,153 (“Choi”) (together, “Glaesener/Chói”), or by U.S. Patent 5,417,913 (“Arend”).

Husky filed a preliminary response, arguing only that assignor estoppel barred Athena from filing a petition for review. The Board rejected that argument and instituted review. Athena Automation Ltd. v. Husky Injection Molding Sys. Ltd., No. 201300290, 2013 WL 8595976, at *2, *7 (P.T.A.B. Oct. 25, 2013) (“Institution Decision”). It first reasoned that the equitable doctrine, “a defense to certain claims of patent infringement,” id. at *7 (quoting Semiconductor Energy Lab. Co. v. Nagata, 706 F.3d 1365, 1369 (Fed. Cir. 2013)), does not provide for an exception to the otherwise broad statutory mandate that “a person who is not the owner of a patent may file with the Office a petition to institute an inter partes review of the patent,” 35 U.S.C. § 311. The Board further found a comparison to 17 U.S.C. § 1337(c) instructive, in that Congress provided for “all legal and equitable defenses” in an ITC investigation, but not in inter partes review. Institution Decision at *7.

In 2014, the Board issued its final written decision. It found that claims 1, 4-16, 18, and 20-22 were anticipated by Arend, Final Written Decision at *23, and that claims 2, 3,17, and 19 were not anticipated by Glaesenet/Choi, id. at *16-17. With respect to the latter, the Board declined to address whether two paragraphs in Glae-sener incorporate Choi by'reference, instead finding that even assuming sufficient incorporation, the reference combination still fails to teach the recited limitations “in the same form and order as listed in the claims.” Id. at *16. Notably, the Board found that Athena failed to explain what Glaesener incorporates from Choi, much less how Choi’s clamping device would secure the components of Glaesener’s molding machine. Id. at *17.

Athena requested rehearing of the final decision, and the Board granted the request in part. J.A. 64. In doing so, the Board expressly addressed incorporation by reference, and found that Athena failed to show that Glaesener incorporates any portion of Choi for purposes of anticipation. Specifically, it reasoned that Athena submitted no evidence or explanation supporting what a skilled artisan would understand the “pineapple and toothed-ring mechanism” in Choi to be, J.A. 60, nor were Choi and Glaesener clear as to what was meant to be incorporated, J.A. 62. For that reason only, the Board reaffirmed its finding that Athena failed to prove anticipation of claims 2, 3,17, and 19. J.A. 63-64.

Husky timely appealed from the Board’s decision with respect to claims 1, 4-16, 18, and 20-22; Athena timely cross-appealed from the Board’s decision with respect to claims 2, 3, 17, and 19. We have jurisdiction to review the Board’s final decision under 28 U.S.C. § 1295(a)(4)(A). .

Discussion

I. Husky's Appeal

Husky’s appeal focuses exclusively on whether assignor estoppel may bar a party from filing a petition for inter partes review at the Patent and Trademark Office. Husky contends that Athena is in privity with Schad, the assignor of the ’536 patent, and, as such, is estopped from challenging the claims of the ’536 patent. Accordingly, Husky continues, the Board acted outside of its-statutory authority when it instituted review and found claims 1, 4-16, 18, and 20-22 unpatentable as anticipated. As Husky only argues that Athena is es-topped from seeking inter partes review, and not that the claims are not anticipated on the merits, we consider only the estop-pel question. For the reasons that follow, we dismiss Husky’s appeal for lack of jurisdiction.

A

We begin with necessary context. In 2011, Congress created the inter partes review process, inter alia, as a means for the Patent and Trademark Office to efficiently review issued patents. Sections 311 through 319 carefully describe the requirements of and mechanism for review. See 35 U.S.C. §§ 311-319. Of particular importance is § 314(d), which provides that “the determination by the Director whether to institute inter partes review under this section shall be final and nonappealable.” Id, § 314(d) (emphasis added). Since § 314(d)’s inception, we have had several opportunities to address whether and to what extent it limits our ability to review the institution decision. E.g., Achates Reference Publ’g, Inc. v. Apple Inc., 803 F.3d 652, 657-58 (Fed. Cir. 2015); In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1273 (Fed. Cir. 2015), aff'd, Cuozzo Speed Techs., LLC v. Lee, — U.S. -, 136 S.Ct. 2131, 195 L.Ed.2d 423 (2016); In re Procter & Gamble Co., 749 F.3d 1376, 1378 (Fed. Cir. 2014); In re Dominion Dealer Sols., LLC, 749 F.3d 1379, 1381 (Fed. Cir. 2014); St. Jude Med., Cardiology Div., Inc. v. Volcano Corp., 749 F.3d 1373, 1375 (Fed. Cir. 2014).

We first held in St. Jude that § 314(d) bars interlocutory review of a decision to deny inter partes review. 749 F.3d at 1375. In doing so, we characterized §' 314(d) as a “broadly worded bar on appeal,” and reasoned that such a result comports with 35 U.S.C. §§ 141(c) and 319, which only authorize appeals from a final written decision. Id. at 1375-76; see 35 U.S.C. § 141(c) (“A party to an inter partes review ... who is dissatisfied with the final written decision of the [Board] may appeal the Board’s decision.... ”); id. § 319 (“A party dissatisfied with the final written decision of the [Board] may appeal the decision....”).

Wé then held in Cuozzo that § 314(d) precludes review of the Director’s earlier decision to institute, even after a final written decision. In Cuozzo, the Director instituted an inter partes review of certain claims, relying on ■ several references not cited in the petition with respect to those claims. See 793 F.3d at 1272 (“Although Garmin’s petition with respect to claim 17 included the grounds on which the PTO instituted review, the petition did not list Evans and Wendt for claim 10 or Wendt for claim 14.”). Cuozzo challenged the Director’s decision, contending that the Director may only initiate an inter partes review proceeding on the grounds “identified] ... with particularity” in the petition, as set forth in 35 U.S.C. § 312(a)(3). Id. at 1272-73. We declined to review Cuozzo’s challenge, .noting that § 314(d) broadly “exclude[s] all review of the decision whether to institute,” and is not just “directed to precluding review only before a final decision.” Id. at 1273. As we stated, a “declaration that the decision to institute be ‘final’ cannot reasonably be interpreted as postponing review until after issuance of a final decision on patentability,” Id. Such an interpretation would render § 314(d) superfluous, “given that § 319 and § 141(c) already limit appeals to appeals from final decisions.” Id.-, see also id. (“Because § 314(d) is unnecessary to limit interlocutory appeals, it must be. read to bar review of all institution decisions, even after the Board issues a final decision.”).

Cuozzo petitioned the Supreme Court to grant certiorari, and the Court did so. Following oral argument, the Court affirmed our decision, concluding that the “text of the ‘No Appeal’ provision, along with its place in the overall statutory scheme, its role alongside the Administrative Procedure Act, the prior interpretation of similar patent statutes, and Congresses] purpose in crafting inter partes review, all point in favor of precluding review , of the Patent Office’s institution decisions.” Cuozzo Speed Techs., LLC v. Lee, — U.S. -, 136 S.Ct. 2131, 2141, 195 L.Ed.2d 423 (2016) (“Cuozzo II”). The Court acknowledged the “strong presumption” in favor of judicial review, but noted that “‘clear and convincing’ indications, drawn from ‘specific language,’ ‘specific legislative history,’ and ‘inferences of intent drawn from the statutory scheme as a whole’ ” show that Congress intended to bar review. Id. at 2140. The Court relied on two aspects in particular: the language of § 314(d), and the nature of the legal dispute at issue.

With respect to the first, the Court noted that § 314(d) unquestionably provides that the determination whether to institute inter partes review “shall be final and nonappealable.” That mandate operates with particular force in view of Congress’s objective in creating the inter partes review process, “giving the Patent Office significant power to revisit and revise earlier patent grants,” as well as the existence of similar provisions in related patent statutes. Id. at 2139-40 (citing both 35 U.S.C. § 319 and 35 U.S.C. § 312 (2006) (repealed) (highlighting the nonreviewability of the determination to initiate inter partes reexamination) with respect to the latter point).

With respect to the second, the Court noted that “the legal dispute at issue [there was] an ordinary dispute about the application of certain relevant patent statutes concerning the Patent Office’s decision to institute inter partes review,” particularly the “related statutory section, §312,” and that the express language of § 314(d) “must, at the least, forbid an ap^ peal that attacks a ‘determination ... whether to institute’ review by raising this kind of legal question.” Id. at 2139. The Court emphasized that review is foreclosed “where the grounds for attacking the decision to institute inter partes review consist of questions that are closely tied to the application and interpretation of statutes related to the Patent Office’s decision to initiate inter partes review.” Id. at 2141 (emphasis added).

The Court did, however, leave open the possibility that § 314(d) may nevertheless allow for review of appeals that “implicate constitutional questions, that depend' on other less closely related statutes, or that present other questions of interpretation that reach, in terms of scope and impact, well beyond ‘this section.’ ” Id. The Court further noted that it did not “categorically preclude review” of any final decision where the agency acted outside of its statutory authority, e.g., “canceling a patent claim for ‘indefiniteness under § 112’ in inter partes review.” Id. at 2141-^2; see also 35 U.S.C. § 311(b) (“A petitioner may request to cancel [a claim] only on a ground that could be raised under section 102 or 103.”).

In line with the latter exception, we have similarly determined that we may review a challenge to the institution decision if it relates to the Board’s ultimate authority to invalidate a particular patent. That ultimate invalidation authority is purely tied to the patent challenged and the nature of the review requested; it is not a question of who. petitions for review. Achates, 803 F.3d 652; see Wi-Fi One, LLC v. Broadcom Corp., 2015-1944, 837 F.3d 1329, 1334-35, 2016 WL 4933298, at *3-4 (Fed. Cir. Sept. 16, 2016) (holding that Achates remains good law in light of the Supreme Court’s decision in Cuozzo II, specifically concluding that § 315 is a statute closely related to the decision whether to. institute); Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306 (Fed. Cir. 2015), cert. denied, No. 15-1145, — U.S. -, 136 S.Ct. 2510, 195 L.Ed.2d 841 (2016).

Indeed, we first established that principle in Versata,. in. an analogous covered business method (“CBM”) review context. See 793 F.3d at 132Ó. During a CBM review, the Board may only evaluate and invalidate a CBM patent, as expressly defined by statute. Id. “If a particular patent is not a. CBM patent, there is no proper pleading that could be filed to bring it within the [Board]’s § 18 [CBM review] authority.” Id.-, cf. id. at 1322 (distinguishing Cuozzo by noting that there a proper petition could have cited all the prior art, “thereby plainly giving the PTAB authority to invalidate the patent at issue in the IPR”). Accordingly, a determination whether the challenged patent satisfies the CBM criteria necessarily relates to the Board’s ultimate invalidation authority, and we held that we may review such a determination, even when made during institution. Id. at 1315, 1319-20; cf. Cuozzo, 793 F.3d at 1273 (“[T]he IPR statute [does not] expressly limit the Board’s authority at the final decision stage to the grounds alleged in the IPR petition.”).

We then elaborated on that principle in Achates, holding that procedural limits placed on when certain parties must file for review do not relate to the Board’s ultimate authority to invalidate a patent. See Achates, 803 F.3d at 657-59. Specifically, Achates involved the time bar in 35 U.S.C. § 315(b). Id. at 653. The Patent and Trademark Office determined that Apple’s petitions for review did not trigger the time bar and instituted review. Id. at 654. On appeal, Achates argued that we could review that determination because it “goes to the Board’s ultimate authority to invalidate the patents.” Id. at 657. We disagreed.

In particular, we acknowledged that “compliance with the time-bar does not itself give the Board the power to invalidate a patent. Instead, the time-bar [(§ 315(b))] sets out the procedure for seeking IPR,” id. at 658, in contradistinction to the express authorization in CBM review for the Board to institute review of, and perhaps invalidate, a CBM patent, cf Versata, 793 F.3d at 1320-21. At best, a time bar prevents particular petitioners from challenging a patent, Achates, 803 F.3d at 657, but that does not affect the Board’s authority to later' invalidate that patent: “The Board may still invalidate a claim challenged in a time-barred petition via a[nother] properly-filed petition from another petitioner.” Id.-, accord id. (“Just as the pleading in Cuozzo could have been sufficient by the inclusion of the missing prior art reference, ... the timeliness issue here could have been avoided if Apple’s petition had been filed a year earlier or if a petition identical to Apple’s were filed by another[.]”); cf. Versata, 793 F.3d at 1320 (noting that no proper pleading “could be filed to bring [the patent] within the PTAB’s § 18 authority”). Because the question for review involved who could petition for review rather than whether the Board could ultimately invalidate the patent, we held that we lacked jurisdiction to review the time-bar determination from the institution decision. See Achates, 803 F.3d at 659.

The above-discussed cases establish a two-part inquiry for determining whether we may review a particular chal-lénge to the decision whether to institute. First, we must determine whether the challenge at issue is “closely tied to the application and interpretation of statutes related to the Patent Office’s decision to initiate inter partes review,” or if it instead “implicate^] constitutional' questions,” “depend[s] on other less closely related statutes,” or “presents] other questions of interpretation that reach, in terms of scope and impact,” “well beyond ‘this section.’” Cuozzo II, 136 S.Ct. at 2141 (emphasis added). If the latter, our authority to review the decision to institute appears unfettered. But if the former, § 314(d) forbids our review. One further exception remains, however. At the second step of the inquiry, we must ask if, despite the challenge being grounded in a “statute' closely related to that decision to institute,” id. at 2142, it is nevertheless directed to the Board’s ultimate invalidation authority with respect to a specific patent, id. at 2141; see also Versata, 793 F.3d at 1319-20; Achates, 803 F.3d at 657; If so, we may review the challenge.

B

It is with that context in mind .that we now turn to the instant case. As in the cases noted above, Husky’s appeal challenges the institution decision, specifically the Board’s determination during the institution phase that assignor estoppel cannot bar an assignor or his or her privies from petitioning for inter partes review. According to Husky, that determination involves “an interpretation issue that reaches, in terms of scope and impact, well beyond § 314,” see Appellant’s Suppl. Br. 1, and, moreover, it necessarily implicates the Board’s invalidation authority with respect to the ’536 patent, see, e.g., Appellant’s Reply Br. 36-43. For those reasons, Husky asserts that we have jurisdiction to review the assignor estoppel determination.

We are mindful of the otherwise powerful presumption favoring judicial review of agency determinations, but in applying the foregoing framework, we conclude that we lack the authority to review the Board’s determination in its institution decision that assignor estoppel does not apply at the Patent and Trademark Office.

First, we conclude that the question whether assignor estoppel applies in full force at the Patent and Trademark Office does not fall into any of the three categories the Supreme Court specifically mentioned as reviewable. Nothing about the question implicates a constitutional concern such as a due process violation, and no party contends as much. Cuozzo II, 136 S.Ct. at 2141.

Nor does it “depend on other less closely related statutes.” Id. As an initial matter, the doctrine of assignor estoppel does not derive from statute. Rather, it is an equitable doctrine that arose in the patent infringement context to prohibit an assign- or or his or her privies from stating the patent rights earlier assigned are of no value. Diamond Sci Co. v. Ambico, Inc., 848 F.2d 1220 (Fed. Cir. 1988). In Diamond Scientific, we reasoned that the “implicit representation by the assignor that the patent rights that he is assigning (presumably for value) are not worthless” must be honored, id. at 1224, for “[t]o allow the assignor to make that representation at the time of the assignment (to his advantage) and later to repudiate it (again to his advantage) could work an injustice against the assignee,” id, Thus, the question of assignor estoppel itself does not “depend on other less closely related statutes.”

Nevertheless,' a determination whether assignor estoppel applies at the Patent and Trademark Office in the inter partes review contéxt necessarily requires an interpretation of 35 U.S.C. § 311(a) (“[A] person who is not the owner of a patent may file....”). See Institution Decision at *7 (“Consequently, under the statute, an assignor of a patent, who is no longer an owner of the patent at the time of filing, may file a petition requesting inter partes review. This statute presents a clear expression of Congress’s broad grant of the ability to challenge the patentability'of patents through inter partes review.” (emphasis added)). We must therefore assess whether § 311 constitutes a “closely related” or an “other less closely related” statute. See Cuozzo II, 136 S.Ct. at 2141.

Even though the Supreme Court did hot set forth any specific framework for determining if a statute is “closely related,” the statutes “closely related” to the decision whether to institute are necessarily, and at least, those that define the metes and bounds of the inter, partes review process. And an interpretation of § 311 and its prescription of “a person who is not the owner of a patent, may file” to either, include or foreclose assignor estoppel is very, “closely related” to any decision to initiate inter partes review. ■ ■

Husky focuses on the third exception set forth by the Supreme Court, arguing that the question'of assignor estoppel is ultimately an “interpretation of an issue that reaches, in terms of scope and impact, well beyond § 314.” Appellant’s- Suppl. Br. 1. We do not agree. Section 314 describes the threshold determination the Patent and Trademark Office must make before it can institute a review; namely, the Director must first determine “that the information presented in the petition ... shows that there is a reasonable likelihood” the petitioner would prevail on the patentability grounds raised. 35 U.S.C. § 314(a). The scope of the section thus pertains to arguments concerning patentability and the necessary strength of those arguments before the Director is authorized to initiate review. The question of assignor estoppel implicates those very same concerns; if assignor estoppel applies, an assignor or his or her privies may not challenge the patentability of the patent earlier assigned, and any petition filed by an assignor or his or her privies falls far short of the “reasonable likelihood” standard guarding against improper institution. See Mentor Graphics Corp. v. Quickturn Design Sys., Inc., 150 F.3d 1374, 1377 (Fed. Cir. 1998) (“Assignor estoppel prevents a party who assigns a patent to another from later challenging the validity of the assigned patent.”). The impact of assignor estoppel thus cannot be divorced from the very precise scope of § 314 simply to justify our review. The issue is not “well beyond this section,” and hence it is beyond our review.

Although we conclude that the assignor estoppel question is not entitled to review under the three exceptions in Cuozzo II, we must nevertheless further determine if, despite the question’s close ties to the decision to institute, the question relates to the Board’s ultimate invalidation authority. We conclude that it does not.

As in this case,' both Versata and Ac-hates involve-statutes “closely related” to the decision to initiate the respective reviews, as we have defined such statutes here today. Nevertheless, in Versata, we held that we could review a determination whether a certain patent met the statutory-definition of a CBM patent because that question necessarily related to the Board’s ultimate authority to invalidate that patent during a CBM review. 793 F.3d at 1315, 1319-20. As noted above, and in contrast, we elaborated in Achates that the Board’s invalidation authority derives from the patent challenged and the type of the review requested; it is not a question of who petitions for review. We thus held that a bar preventing particular petitioners from challenging a patent does not impact the Board’s invalidation authority, for “[t]he Board may still invalidate a claim challenged in a time-barred petition via a[nother] properly-filed petition from another petitioner.” Achates, 803 F.3d at 657.

As we have stated, assignor estoppel operates to prevent “one who has assigned the rights to a patent (or [a] patent application) from later contending that what was assigned” lacks value. Diamond Sci., 848 F.2d at 1224. It does not foreclose all challenges to a patent’s validity from the remainder of the general public. See id. (“The essence of the principle of fair dealing which binds the assignor of a patent in a suit by the assignee, even though it turns out that the patent is invalid or lacks novelty, is that in this relation the assignor is not part of the general public but is apart from the general public.” (citation and quotation marks omitted)). To that end, it does not prevent a tribunal from evaluating the validity of any challenged claims generally, but rather simply limits the parties that may ask the tribunal for such an evaluation.

In that way, assignor estoppel differs from the certain statutory limits placed on the Board’s authority in a CBM review. In Versata,■ the determination in question turned on the type of patent involved, for the nature of the patent alone made it subject to “a special [Board] power to invalidate.” 793 F.3d at 1321. In contrast, assignor estoppel “does not itself give the Board the power to invalidate a patent.” See Achates, 803 F.3d at 658. Rather, it is of a piece with the procedural limits deemed unreviewable in Achates, where those limits effectuated the orderly progress of inter partes review. As we reasoned, a failure to follow the time bar by one petitioner would not foreclose all future review by the Board; it would simply prevent a particular petitioner from challenging the patent’s claims. Id. at 657. Likewise, that one petitioner may be es-topped from challenging the patent does not foreclose all future review by the Board of that patent. Indeed, “[t]he fact that the petition was defective is irrelevant because a proper petition could have been drafted.” See Cuozzo, 793 F.3d at 1274. Ultimately, any question concerning assignor estoppel necessarily implicates who may petition for review, and, as we have held, such a question falls outside of the narrow exceptions to the otherwise broad ban on our review of the decision whether to institute.

For the reasons articulated above, we conclude that we lack jurisdiction to review the Board’s determination on whether assignor estoppel precludes it from instituting inter partes review. We therefore dismiss Husky’s appeal, and express no opinion on the merits of the Board’s conclusion that assignor estoppel may not bar an assignor or his or her privies from petitioning for inter partes review.

II. Athena’s Cross-Appeal

The question before us in the cross-appeal relates to incorporation by reference, and ultimately to anticipation.

We review the Board’s legal conclusions de novo, In re Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), and the Board’s factual findings underlying those determinations for substantial evidence, In re Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000). A finding is supported by substantial evidence if a reasonable mind might accept the evidence to support the conclusion. See Consol Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938).

Anticipation is a fact question that we review for substantial evidence. In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009). A prior art document may anticipate a claim if it describes every element of the claimed invention, either expressly or inherently. See Advanced Display Sys., Inc. v. Kent State Univ., 212 F.3d 1272, 1282 (Fed. Cir. 2000). Other material may be considered as part of that prior art document if it is incorporated by reference. Id.

A host document incorporates material by reference if it “identif[ies] with detailed particularity what specific material it incorporates and clearly indicate[s] where that material is found in the various documents.” Id. Whether and to what extent material is incorporated by reference is a question of law we review de novo. See Harari v. Lee, 656 F.3d 1331, 1334 (Fed. Cir. 2011). In making such a determination, we assess whether a skilled artisan would understand the host document to describe with sufficient particularity the material to be incorporated. Id.

Athena’s cross-appeal contests the Board’s determination that the prior art Glaesener does not incorporate the prior art Choi by reference, and thereby the Board’s finding that claims 2, 3,17, and 19 are not unpatentable as anticipated. Two specific paragraphs in Glaesener are at issue. The first reads: “The tie-bar nuts can be secured ... by any appropriate mechanism, such as the pineapple and toothed-ring mechanism described in [Choi].” Glaesener ¶ 0035. The second reads: “All cross-referenced patents and application^] referred to in this specification are hereby incorporated by reference,” Id. ¶ 0049. The Board determined that neither paragraph identifies with sufficient particularity what material from Choi Glaesener meant to incorporate.

On appeal, Athena contends that it provided evidence establishing that a skilled artisan would 'understand with sufficient particularity what the “pineapple and toothed-ring mechanism” language ’ referred to in Choi. Alternatively, Athena contends that the second statement effects a broad incorporation that cannot be negated by the use of a more precise incorporation statement elsewhere.

We agree; Glaesener identifies with sufficient particularity what it incorporates from Choi. As an initial matter, the fact that Choi does not recite either of the words “pineapple” or “toothed-ring” throughout its disclosure is ultimately of no moment. The incorporation standard relies only on the reasonably skilled artisan and his or her ability to deduce from language, however imprecise, what a host document aims to incorporate. See Harari, 656 F.3d at 1331; Advanced Display, 212 F.3d at 1283; cf. Gleave, 560 F.3d at 1334 (A “reference need not satisfy an ipsissim-is verbis [word-for-word] test” to anticipate.).

Even so, Choi explicitly identifies toothed components when discussing its securing/clamping assemblies, i.e,, its locking mechanism. And, importantly, Figure 3A discloses the only locking mechanism in Choi.

Referring to Figs. 3A and 3B, in order for the securing/clamping assembly 22a of platen 14 to function with the tie bar 2a, tie bar 20a includes an elongated end section having a plurality of spaced protrusions in the form of teeth 38a separated by longitudinally extending inner slots 40a as shown in Fig. 3B. Accordingly, at the end of tie bar 20a is a toothed outer surface, as shown in Fig. 3A. The toothed outer surface of tie bar 20a is in the form of longitudinal outer strips of teeth 39a extending in the axial direction of the tie bar, wherein the teeth 38a are preferably aligned in a radial direction on the tie bar and separated by a space in the axial direction ....
Outer strips of teeth 39a and slots 40a of tie bar 20a are adapted to engage and align, respectively, with inner teeth and grooves of securing/clamping assembly 22a.... Securing/clamping assembly 22a is comprised of a member in the form of a piston 44a.... Piston 44a includes an outer surface 46a and an inner surface with axially extending teeth 48a separated by spaces in the axial direction, which are adapted to engage teeth 38a of the strips of teeth 39a of tie bars 20a. A slight axial clearance is provided between the teeth 38a of tie bars 20a and the inner teeth 48a of toothed piston 44a to allow for relative movement....

Choi, col. 5 1. 40-col. 6 1. 5 (emphases added). A reasonably skilled artisan would thus appreciate Glaesener’s reference of “pineapple and toothed-ring” to describe, with sufficient particularity, the above-referenced disclosure in Choi. To find otherwise would be to undervalue the knowledge of a skilled artisan. Indeed, Athena identified Figure 3a as the “pineapple and toothed-ring mechanism” Glaesener referred to both in its petition for inter partes review and during its trial at the Board. See J.A. 113-14; J.A. 441-42. Nothing more was required.

Glaesener’s two paragraphs, ¶ 0035 and ¶ 0049, accordingly work in concert to incorporate at least some portions of Choi. It is therefore of no consequence whether Glaesener’s broader statement in fact incorporates the rest of Choi, ie., in its entirety. Cf. Harari, 656 F.3d at 1335-36. Ultimately, the Board erred in determining that Glaesener does not incorporate Choi for purposes of anticipation. Because the Board provided no further reasoning why claims 2, 3,17, and 19 were not anticipated, we vacate and remand for the Board to evaluate anticipation in the first instance in light of Glaesener/Choi.

Conclusion

We have considered the remaining arguments in both appeals, but find them unpersuasive. For the foregoing reasons, we dismiss Husky’s appeal for lack of jurisdiction; we vacate the Board’s decision on incorporation by reference and its finding of no anticipation with respect to claims 2, 3, 17, and 19; and we remand for further consideration consistent with this opinion.

DISMISSED IN PART, VACATED AND REMANDED IN PART

Costs

Costs to Athena.

PLAGER, Circuit Judge,

concurring in part and dissenting in part.

I concur in the majority’s judgment regarding vacating and remanding the cross-appeal. I dissent from the judgment that we lack jurisdiction to review the determination by the Patent Trial and, Appeal Board (“Board”) regarding whether assignor estoppel precludes it from instituting inter partes review in this case. I believe the majority’s reasoning is mistaken, and I respectfully dissent from it and the conclusion to which it leads. Regrettably, the majority’s view may' contribute to the already-existing confusion regarding which matters this court can review on appeal from a final decision by the Board.

Summarizing the case in its simplest terms, this is why:

Athena, pursuant to the statutory provisions of the America Invents Act (“ALA”), filed its petition requesting inter partes review of the ’586 patent owned by Husky. Husky, in its preliminary response, stated its opposition to the petition. It argued that Athena was barred from filing its petition by the doctrine of assignor estop-pel. The Board rejected Husky’s argument; it took the position that § 311(a) of the ALA determined who could file a petition, and that assignor , estoppel did not provide an exception to § 311(a).

The Board explained that § 311(a) provided simply that “a person who is not the patent owner” could file a petition; since Athena was not the owner, it was such a person. The Board interpreted the provision to mean just what it said and' not to have an implicit exception that would prevent a petitioner, who is subject to assign- or estoppel, from filing. Thus the Board applied essentially a ‘plain meaning interpretation to the language of § 311(a). Thereafter, having determined that the petition to institute was properly before it, the Board instituted review and, in due course, issued a final written decision on the merits, upholding some claims and invalidating others.

In its appeal to this court, Husky stated that the single issue in its appeal is: “Did the Board legally err by determining that, pursuant to 35 U.S.C. § 311, the doctrine of assignor estoppel does not apply to the inter partes review concerning the ’536 patent_” Appellant’s Br. 1. Much of the briefing in this case focused on the application of assignor estoppel at the decision to institute stage, though some seemed to address more broadly the issue of assignor estoppel’s application to Board proceedings generally. Be that as it may, the only issue properly raised by the record on appeal is the one initiated by the Board and identified by Husky: at the time an initial petition is filed, does § 311(a) incorporate an unstated exception regarding who can file an initial petition, an exception based on assignor estoppel?

Before we can address the correctness of the Board’s resolution of that issue, we must first decide whether as a matter of law we can review the Board’s determination, a determination that was decisive regarding whether the Board could institute inter partes review of the ’536 patent. A statute and a Supreme Court decision govern the answer:. Congress’s mandate in § 314(d) that “[t]he determination ... whether to institute an inter partes review under this section shall be final and nonap-pealable,” and the recent opinion of the Supreme Court in Cuozzo

It is clear from the prior opinions of this court, unquestioned by the Supreme Court, that the statute bars immediate review of a Board decision to institute an inter partes review, whether by interlocutory appeal, mandamus, or other procedural device. What has not been clear is, when a final written decision of the Board is appealed to this court, as provided by statute, what aspects, if any, of the Board’s decision to institute are then reviewable?

One part of that question is no longer in dispute—the fact that a particular issue is determined initially by the Board at the decision to institute stage does not affect the reviewability of the issue at the final written decision stage, so long as the issue remains relevant to the final merits under review. See, e.g., Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1318-19, 1329 (Fed. Cir. 2015) (finding we could review on appeal of a final written decision whether the Board correctly took jurisdiction over the patent at issue as a CBM patent and whether the Board was authorized to rely on § 101 in CBM cases); In re Magnum Oil Tools Int'l, Ltd., No. 15-1300, 829 F.3d 1364, 1373-74, 2016 WL 3974202 at *4 (Fed. Cir. July 25, 2016) (finding we could review statements made by the Board in the decision to institute that were later relied upon in the final written decision).

With regard to the larger question—on appeal to this court of a final written decision, what aspects, if any, of the initial decision to institute remain subject to review—one view is that no aspect of the decision to institute is reviewable. That seems to be what the statute literally says, thus making the decision to institute entirely an administrative determination, however it is made. That is now a familiar argument, sometimes reflected in ease outcomes phrased in various ways based on assorted distinctions in the cases.

A different view, one that takes into account the long tradition of judicial review of administrative decisions as well as the mandate of the APA, suggests that the bar to judicial review under § 314(d) should be understood as limited to interlocutory appeals; what Congress wanted to avoid was piecemeal appellate review. Once a final written decision is rendered, the entire case on appeal is properly before the court, including issues surrounding the Board’s initial decision to institute review. In Cuozzo, that was essentially the position of Justice Alito, with whom Justice Sotomayor joined. See 136 S.Ct. at 2150-53 (Alito, J., concurring in part and dissenting in part).

The Cuozzo majority did not go as far as Justices' Alito and Sotomayor would; the Court determined that § 314(d) was not limited to ' barring interlocutory appeals. Id. at 2140. However, by also rejecting the ‘no review of the decision to institute’ view, the Court took an intermediate position that fundamentally altered' the playing field. The Court readily recognized that several factors pointed in favor of precluding any review of the Patent Office’s institution decisions. Id. at 2139-41. Nevertheless, said the Court, “in light of § 314(d)’s own text and the presumption favoring review,” there is one category of cases when the bar of § 314(d) applies, and at least three others when it may not.

The one category in which the bar applies is when “the' grounds for attacking the decision to institute inter partes review consist of questions that are closely tied to the application and interpretation of statutes related to the Patent Office’s decision to initiate inter partes review.” Id. at 2141. The Court then stated “that we need not, and do not, decide the precise effect of § 314(d) on appeals that [1] implicate constitutional questions, that [2] depend on other less closely related statutes, or that [3] present other questions of interpretation that reach, -in terms of scope and impact, well beyond ‘this section.’” Id.

• Thus the Court tells us that, despite the express language of § 314(d), this court’s review on appeal of a final written decision is not limited to' the substantive merits of the case under' §§ 102 and 103, but may include aspects of the Board’s decision to institute. For us, then, the issue in this case is where does assignor estoppel fit in the Court’s matrix of what now can be reviewed?

Assignor estoppel is an equitable doctrine that is recognized in the common law. Given the long tradition of judicial review of administrative decision-making, and the Supreme Court’s specific reference in Cuozzo to the APA’s provisions mandating review of agency action, it would seem anomalous to say that the application of such a rule to proceedings before the Board, a unit of an administrative agency, is exclusively for the agency to decide. Applying the Cuozzo criteria, we must examine whether, by basing its decision on its ‘interpretation’ of what would appear to be a ‘related statute,’ the Board has insulated itself from judicial review? I think not.

For one, the doctrine of assignor estop-pel is in the nature of a common law doctrine, and not itself based on statute. We should be reluctant to allow immunizing judicial review simply because the Board may attribute its decision to an interpretation of a ‘related’ statute. That could open the door to possible manipulation by parties in presenting and arguing cases before the Board and this court.

More importantly, in order to honor the Supreme Court’s direction to this court to exercise judicious review over determinations of the Board, including when called for by extending that review to the Board’s decisions to institute, we must take a close look at what is actually involved. Even if the Board is presumed to have succeeded in tying the question of assignor estoppel to interpretation of a ‘related statute,’ in this case § 311(a), by the way it decided the matter, it is not so clear that this is “closely tied to the application and interpretation of statutes related to the Patent Office’s decision to initiate inter partes review.” Id. at 2141. The decision to institute inter partes review is governed primarily by the specifics of § 314(a)-(c). It would not be beyond reason to consider §311 to be instead a “less closely related statute.” (The terms of the second category in Cuozzo).

And beyond that, the question of whether assignor estoppel applies to the decision to institute made by the Board in this case could be considered to be one that “presents] other questions of ■ interpretation that reach, in terms of scope and impact, well beyond ‘this section.’ ” Id. (The terms of the third category in Cuozzo). And again, the phrase, “this section,” put in quotes in the original, serves as an apparent reference to the other subparts of §314.

The Supreme Court’s pass of the “precise effect of § 314(d) on appeals that implicate” those categories means that this court must undertake that determination in future cases. Applying either of those Cuozzo categories to cases before this court, including issues decided in past cases, reveals that there is a range of reviewable issues that this court is obligated to consider. Examples ■ may include, among others, filing deadlines and joinder and estoppel issues.

I offer no opinion as to whether the Board correctly determined that assignor estoppel does or does not apply to bar the petition in this'case; that issue is yet to be addressed. In my view it is necessary that we decide that issue as part of a proper judicial review of the case before us on final written decision. Whether under the second or third of Cuozzo’s suggested categories for review, or because it is not within Cuozzo’s basic standard for applying the bar of § 314(d) in the first, instance, the question of whether the Board properly ruled on the application of assign- or estoppel to this case is clearly subject to this court’s judicial power of review.

Accordingly, I find the majority’s analysis of this case, its unnecessary commentary approving prior cases that may no longer be good law in light of Cuozzo, and its discussion of why the question of the application of assignor estoppel to this case does not relate to “the Board’s ultimate invalidation authority,” unhelpful. From the majority’s refusal to undertake the required review of the Board’s decision, the issue properly raised on appeal, I respectfully dissent.

      . Claim 1 represents the product claims, '536 patent col. 16 11. T 2-27, and claim 18 represents the method claims, id. col. 18 11. 6-17. Both are reproduced below.
      1. A lock of a molding system having a rod and a platen, the lock comprising:
      a lock member associated with the rod that is movable between a clamped position and a released position by a clamp assembly; and
      a complementary lock member associated with the platen; the lock member and the complementary lock member cooperatively operable to move between a lockable condition and an unlockable condition; wherein
      the complementary lock member is en-gagable with the lock member within a relatively lower flex zone of the platen; the relatively lower flex zone of the platen being a
      portion of the platen adjacent to the rod and having a flex that is lower relative to a relatively higher flex zone of the platen also adjacent to the rod.
      18. A method of actuating a lock of a molding system having a rod- that is movable between a clamped position and a released position by a clamp assembly and a platen, the method comprising:
      engaging a lock member associated with the rod with a complementary lock member associated with the platen at a position located proximate to a relatively lower flex zone of the platen;
      the relatively lower flex zone of the platen being a
      portion of the platen adjacent to the rod and having a flex that is lower relative to a relatively higher flex zone of the platen also adjacent to the rod.

      . The first relevant paragraph in Glaesener recites: "The tie-bar nuts can be secured to the rear wall 16 by any appropriate mechanism, such as the pineapple and toothed-ring mechanism described in [Choi].” Glaesener ¶ 0035 (emphasis added). The second paragraph recites: "All cross-referenced patents and application[s] referred to in this specification are hereby incorporated by reference.” Id. ¶ 0049,

      . The Supreme Court issued its decision in Cuozzo II after briefing and oral argument concluded in this case. We therefore requested simultaneous, supplemental briefing from the parties and the Patent and Trademark Office relating to the impact of the Supreme Court’s decision on this case. See Husky Injection Molding Sys. Ltd. v. Athena Automation Ltd., Nos. 2015-1726, -1727, ECF No. 55 (Fed. Cir. July 18, 2016). Those briefs were submitted on July 28, 2016. Id. ECF Nos. 58, 61, 62.

      . 35 U.S.C. § 315(b) provides: “An inter partes review may not be instituted if the petition requesting the proceeding is filed more than 1 year after the date on which the petitioner ... is served with a complaint alleging infringement of the patent.”

      . Cuozzo Speed Techs., LLC v. Lee, — U.S. -, 136 S.Ct. 2131, 195 L.Ed.2d 423 (2016).

      , We have considered and rejected interlocutory appeal of a decision not to institute. See St. Lude Med., Cardiology Div., Inc. v. Volcano Corp., 749 F.3d 1373, 1375-76 (Fed. Cir. 2014). We also have considered and rejected interlocutory appeal or mandamus relief for a decision to institute (later vacated by the Board). See GEA Process Eng'g, Inc. v. Steuben Foods, Inc., 618 Fed.Appx. 667 (Fed. Cir. 2015).

      . In re Procter & Gamble Co., 749 F.3d 1376, 1378-79 (Fed. Cir. 2014).

      . See HP Inc. v. MPHJ Tech. Inv., LLC, 817 F.3d 1339, 1344-47 (Fed. Cir. 2016) (on appeal of a final written decision, dealing with whether § 314(d) barred review of an APA challenge to the Board’s decision to institute).

      . §319.

      . The Court went further to explain that it did not preclude review of a final decision when a petition raised a due process problem with the entire proceeding, nor did the Court intend to enable an agency to act outside its statutory limits. Id, at 2141-42. The Court observed that such "shenanigans” may be re- - viewable under § 319 and the APA; similar to its treatment of the three reviewability categories, the Court did not elaborate on what constitutes ‘shenanigans.’

      . The first category, constitutional questions, is not before us as no constitutional issues have been raised.

      . "Assignor estoppel is an equitable doctrine that prevents one who has assigned the rights to a patent (or patent application) from later contending that what was assigned is a nullity.” Diamond Sci. Co. v. Ambico, Inc., 848 F.2d 1220, 1224 (Fed. Cir. 1988).

      . See, e.g., Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986); 5 U.S.C. § 702.

      . Id. at 2142 (citing 5 U.S.C. §§ 706(2)(A)-(D)).

      . Accord Judge Reyna’s concurring opinion in Wi-Fi One, LLC v. Broadcom Corp., No. 15-1944, 837 F.3d 1329. 1339-41. 2016 WL 4933298, at *8-9 (Sept. 16, 2016) (Reyna, J., concurring).


source: Caselaw Access Project

author: BRYSON, Circuit Judge.

license: Public Domain

text:
    AFFINITY LABS OF TEXAS, LLC, Plaintiff-Appellant v. DIRECTV, LLC, DIRECTV Digital LLC, MLB Advanced Media, Inc., MlB Advanced Media, L.P., NBA Media Ventures, LLC, Turner Digital Basketball Services, Inc., NHL Interactive Cyber Enterprises, LLC, NHL Enterprises, Inc., NHL Enterprises, L.P., Defendants-Appellees
    2015-1845
    2015-1846
    2015-1847
    2015-1848
    United States Court of Appeals, Federal Circuit.
    Decided: September 23, 2016

      Cyrus Alcorn Morton, Robins Kaplan LLP, Minneapolis, MN, argued for plaintiff-appellant. Also represented by Ronald James Schütz, Patrick M. Arenz, Brenda L. Joly, Benjamen Linden.
    David B. Weaver, Baker Botts, LLP, Austin, TX, argued for all defendants-ap-pellees. Defendants-appellees NBA Media Ventures, Turner Digital Basketball Services, Inc., NHL Interactive Cyber Enterprises, LLC, NHL Enterprises, Inc., NHL Enterprises, L.P. also represented by Christopher Granaghan; Jeffrey Ta-Hwa Han, Vinson & Elkins LLP, Austin, TX; Hilary L. Preston, New York, NY.
    Darin W. Snyder, O’Melveny & Myers LLP, San Francisco, CA, for-defendants-appellees DIRECTV, LLC, DIRECTV Digital LLC.
    Nathan K. Cummings, Cooley LLP, Re-sten, VA, for defendants-appellees MLB Advanced Media, Inci., MLB Advanced Media, L.P.
    Before PROST, Chief Judge, BRYSON and WALLACH, Circuit Judges.
   BRYSON, Circuit Judge.

I

Affinity Labs of Texas, LLC, is the owner of U.S. Patent No. 7,970,379 (“the ’379 patent”). The patent contains two independent claims, one a system claim and the other a method claim. The claims are directed to streaming regional broadcast signals to cellular telephones located outside the region served by the regional broadcaster. Representative claim 1 of the ’379 patent, the independent system claim, recites as follows:

1. A broadcast system, comprising:
a network based resource maintaining information associated with a; network . available representation of a regional broadcasting channel that can be select^ ed by a user of a wireless cellular telephone device; and
a non-transitory storage medium including an application configured for execution by the wireless cellular telephone device that when executed, enables the wireless cellular telephone device:
to present a graphical user interface comprising at least a partial listing of available media sources on a display associated with the wireless cellular telephone device, wherein the listing includes a selectable item that enables user selection of the regional broadcasting channel;
to transmit a request for the regional broadcasting channel from the wireless . cellular telephone device; and
to receive a streaming media signal in the wireless, cellular telephone device corresponding to the regional broadcasting channel, wherein the wireless cellular telephone device is outside. of a broadcast region of the regional broadcasting channel, wherein the wireless cellular telephone device is configured-to receive the application via an over the air download.

Stripped of excess verbiage, claim 1 is directed to a broadcast system in which a cellular telephone located outside the range of' a regional broadcaster (1) requests and receives network-based content from the broadcaster via a streaming signal, (2) is configured to wirelessly download an application for performing thosé functions, and (3) contains á display that allows the user to select particular content.

Affinity sued the nine defendants, alleging that they infringed the ’379 patent by marketing a system that allows customers to receive regional radio broadcasts on their cellphones even when their cellphones are outside the regions reached by the stations’ broadcast signals. The defendants moved to dismiss the complaints for failure to state a claim, arguing that the asserted claims were not directed to patentable subject matter.

The magistrate judge recommended that the motion to dismiss be granted. Following the two-stage inquiry for patentability set forth by the Supreme Court in Mayo Collaborative Services v. Prometheus Laboratories, Inc., — U.S. -, 132 S.Ct. 1289, 182 L.Ed.2d 321 (2012), and Alice Corp. v. CLS Bank International, —- U.S, -, 134 S.Ct. 2347, 189 L.Ed.2d 296 (2014), the magistrate judge found that the ’379 patent was directed to an “abstract idea” and that the claims did not contain an “inventive concept.”

The purpose of the ’379 patent, the magistrate judge explained, “is the dissemination of regionally broadcasted content to users outside the region.” That purpose, he held, is a “fundamental economic and conventional business practice” that is both “well-known and historically long-standing”; he therefore concluded that the claims were directed to an abstract idea.

The magistrate judge next found that the claims of the ’379 patent do not contain an inventive concept such that they do more than claim the ineligible idea itself. He explained that the patent “merely takes the abstract idea ... and applies it to a generic, electronic device, in this case—a wireless cellular telephone.” He then concluded that the components of claim 1 are merely “routine and generic processing and storing capabilities of computers generally,” and that the claimed functions—storing information in memory, executing a program, and sending and receiving data—can all be performed by a generic computer: “There is not a non-generic function or component contained in the claims that, sets forth the blueprint with any degree of specificity of how to disseminate regional broadcast content to a user outside the region over a wireless, cellular telephone device.”

In response to Affinity’s assertion that the downloadable application is an inventive concept, the magistrate judge observed that the patent “merely states that the application ‘enables’ the device to present a graphical user interface so a user can select what data that user wants to stream”; the patent is “devoid ,of any teaching or blueprint explaining how the device can do what it purports to do.” The “bottom line,” he explained, “is that Claim 1 takes the abstract idea and says ‘apply it’ to a wireless, cellular telephone device acting as a generic computer.”

The magistrate: judge also rejected Affinity’s argument based on the graphical user interface limitation in claim 1. He ruled that the graphical user interface limitation merely recites a generic computer component and does not contribute an inventive concept to the claim.

The district court accepted the magistrate judge’s recommendation and entered judgment against Affinity. The court agreed with the magistrate judge that the ’379 patent is directed to an abstract idea. In particular, the court agreed that the purpose of the claimed invention—to disseminate regionally broadcast content to users outside the region—is a well-known, longstanding business practice, and that the claims directed to that purpose are not tangible and concrete. The court also agreed that the claimed “downloada-ble application with graphical user interface” does not qualify as an “inventive concept.”

II

The framework for determining whether a particular patent claim is directed to patentable subject matter is by now familiar. Section 101 of the Patent Act provides that “[wjhoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” 35 U.S.C. § 101. The Supreme Court has held that the broad language of that provision is subject to an implicit exception for “laws of nature, natural phenomena, and abstract ideas,” which are not patentable. Alice, 134 S.Ct. at 2354.

The Supreme Court has devised a two-stage framework to determine whether a claim falls outside the scope of section 101. The prescribed approach requires a court to determine (1) whether the claim is directed to a patent-ineligible concept, i.e.., a law of nature, a natural phenomenon, or an abstract idea, and if so, (2) whether the elements of the claim, considered “both individually and ‘as an ordered combination,’ ” add enough to “ ‘transform the nature of the claim’ into a patent-eligible application.” Alice, 134 S.Ct. at 2355 (quoting Mayo, 132 S.Ct. at 1297-98). In the context of claims that are challenged as containing only abstract ideas, those two stages are typically referred to as the “abstract idea” step and the “inventive concept” step.

The “abstract idea” step of the inquiry calls upon us to look at the “focus of the claimed advance over the prior art” to determine if the claim’s “character as a whole” is directed to excluded subject matter. The “inventive concept” step requires us to look with more specificity at what the claim elements add, in order to determine “whether they identify an ‘inventive concept’ in the application of the ineligible subject matter” to which the claim is directed. Elec. Power Grp., LLC v. Alstom S.A., No. 2015-1778, 830 F.3d 1350, 1353, 2016 WL 4073318, at *3 (Fed. Cir. Aug. 1, 2016), ; see also Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016); Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369, 1375-76 (Fed. Cir. 2016); Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015).

We have acknowledged that “precision has been elusive in defining an all-purpose boundary between the abstract and the concrete.” Internet Patents, 790 F.3d at 1345. The inquiry is not an unbounded one, however. This court has applied the two-stage Mayo/Alice inquiry in numerous cases during the four 'years since the Supreme Court’s decision in Mayo, and those decisions have provided substantial guidance in determining whether claims are unpatentable under the “abstract idea” rubric. Viewing this ease in light of the principles set forth by the Supreme Court and applied ’ by this court, we are persuaded that the claims at issue in this case fall on the unpatentable side of the line.

A

The concept of providing out-of-region access to regional broadcast content is an abstract idea, as that term is used in the section 101 context. It is a broad and familiar concept concerning information distribution that is untethered to any specific or concrete way of implementing it.

The practice of conveying regional content to out-of-region recipients has been employed by nearly every form of media that has a local distribution. It is not tied to any particular technology and can be implemented in myriad ways ranging from the low-tech, such as by mailing copies of a local newspaper to an out-of-state subscriber, to the high-tech, such as by using satellites to disseminate broadcasts of sporting events. As the magistrate judge noted, such out-of-region-broadcasts have been commonplace since the late 20th century, in the form of systems delivering local radio and television broadcasts of sporting events-to a national audience.

The ’379 patent claims the function of wirelessly communicating regional broadcast content to an out-of-region recipient, not a particular way of performing that function. While independent claim 1 refers to general components such as a cellular telephone, a graphical user interface, and a downloadable application, the claimed invention is entirely functional in nature. It recites software in the form of “an application configured for execution by the wireless cellular telephone device” that performs three functions: (1) it presents a listing of available media choices on a display on the cellular telephone; (2) it enables the telephone “to transmit a request for the regional broadcasting channel”; and (3) it enables the telephone “to receive a streaming media signal in the ... device corresponding to the regional broadcasting channel” when the device is outside of the range of the regional broadcaster. There is nothing in claim 1 that is directed to how to implement out-of-region broadcasting on a cellular telephone. Rather, the claim is drawn to the idea itself.

To be sure, the ’379 patent claims the wireless delivery of regional broadcast content only to cellphones. In that sense, the claims are not as broad as the abstract idea underlying them, which could apply to the delivery of out-of-region content to any electronic device. That restriction, however,- does not alter the result. All that limitation does is to confine the abstract idea to a particular technological environment—in this case, cellular telephones. The Supreme Court and this court have repeatedly made clear that merely limiting the field of use of the abstract idea to a particular existing technological environment does not render the claims any less abstract. See Alice, 134 S.Ct. at 2358; Mayo, 132 S.Ct. at 1294; Bilski v. Kappos, 561 U.S. 593, 612, 130 S.Ct. 3218, 177 L.Ed.2d 792 (2010); Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1348 (Fed. Cir. 2014); buy SAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014).

Even if all the details contained in the specification were imported into the ’379 claims, the result would still not be a concrete implementation of the abstract idea. In fact, the specification underscores the breadth, and abstract nature of the idea embodied in the claims.

The specification describes the wireless communication of information to an electronic device at a high level of generality. In a passage describing figure 1 of the ’379 patent, reproduced below, the specification states that the “general system for wire-lessly communicating selective [sic] information to an electronic device” includes “a digital engine 101 coupled to a communications engine 102,” which is “remotely coupled to an electronic device 103,” and which “may be directly or indirectly coupled to storage device 105 operable to store information.” ’379 patent, col. 3, 11. 24-31. The communications engine “is com-municatively coupled to digital engine 101 and operable to wirelessly communicate the selected information to electronic device 103.” Id., col. 3,11. 37-39.

The specification adds that “[communications engine 102 may be operable to wirelessly communicate selected information to electronic device 103 in a plurality of ways. The present invention advantageously allows for several different embodiments of wirelessly communicating selected audio information to electronic device 103 and is not limited to any specific configuration.” Id., col. 4,11. 33-38. “Therefore, system 100 may be configured in a plurality of ways to communicate selected information to electronic device 103.” Id., col. 6, 11. 8-10.

In the very brief discussion that is pertinent to out-of-region broadcasting claims, the specification states that “a user may want to listen to a radio station located in a remote location wherein conventional radio receivers could not receive the desired broadcast. For example, a person living in Houston, Tex. may not be able to receive a radio broadcast signal from a radio station in Seattle, Wash, utilizing a conventional radio receiver.” ’379 patent, col. 15, 11. 59-64.

That passage describes the objective of making broadcast media available outside of its usual local distribution area. The passage is found in a portion of the specification that describes a flow chart with a series of steps relating to the provision of audio content over the Internet to an electronic device. ’379 patent, col. 14, line 34, through col. 17, line 17. The first two steps in the flow chart read “User accesses web page via Internet” and “User selects audio information.” The next pertinent step reads “Wirelessly communicate info to selected device.” Several additional steps relate to the customization and execution of a music playlist, not broadcast radio content. ’379 patent, Fig. 8.

Nothing in the flow chart or the text of the specification provides any details regarding the manner in which the invention accomplishes the recited functions. The specification contains several other references to radio stations using the Internet to transmit their signals and communicating information by using digital broadcast signals, but it contains no further discussion of how the invention implements the delivery of ordinary broadcast radio signals to cellphones. See Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1333 (Fed. Cir. 2012) (adding a “computer aided” limitation is insufficient to constitute a specific application where “[t]he claims are silent as to how a computer aids the method, the extent to which a computer aids the method, or the significance of a computer to the performance of the method”).

The idea underlying the inventions in this case is akin to the ideas underlying the claims in several of this court’s recent cases. In In re TLI Communications LLC Patent Litigation, 823 F.3d 607, 610 (Fed. Cir. 2016), the claimed invention was a “method for recording and administering digital images,” which entailed “recording images using a digital pick up unit in a telephone unit,” storing the images as digital images, transmitting the digital images and classification information to a server, and then storing the digital images in the server in light of the classification information.

The court held that the claim at issue in TLI was abstract in that it was drawn to the abstract idea of classifying an image and storing the image based on its classification. While the claim required the use of concrete, tangible components such as a telephone unit and a server, the court noted that the specification made clear that the recited physical components “merely provide a generic environment in which to carry out the abstract idea of classifying and storing digital images in an organized manner.” Id. at 611.

In addressing computer-implemented patents, the TLI court contrasted claims that are directed to an improvement in the functioning of a computer with claims that “simply add[ ] conventional computer components to well-known business practices” or consist only of “generalized steps to be performed on a computer using conventional computer activity.” Id. at 612. The claims in TLI were not directed to an improvement in computer functionality, but were directed to “the use of conventional or generic technology in a nascent but well-known environment.” Id. The court explained that the specification “does not describe a new telephone, a new server, or a new physical combination of the two,” but instead “describes the system and methods in purely functional terms.” Id. Thus, the court concluded, the claims “are not directed to a solution to a ‘technological problem.’ ” Id. at 613.

Another case involving a similar abstract idea is Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014). The patent at issue in that case was drawn to a method for distributing copyrighted content over the Internet, in which a consumer would be given access to copyrighted material in exchange for viewing an advertisement and the advertiser would pay for the copyrighted content. The court held that “[t]he process of receiving copyrighted media, selecting an ad, offering the media in exchange for watching the selected ad, displaying the ad, allowing the consumer access to the media, and receiving payment from the sponsor of the ad all describe an abstract idea, devoid of a concrete or tangible application.” Id. at 715.

Focusing on the additional limitations in the claims, the court held that most of them simply described “the abstract idea of showing an advertisement before delivering free content.” Id. As for the remaining limitations, the court ruled' that “the addition of merely novel or non-routine components to the claimed idea [does not] necessarily turn[ ] an abstraction into something concrete.” Rather, the court explained, “any novelty in implementation of the idea is a factor to be considered only in the second step of the Alice analysis.” Id.

Although the technology at issue in this case differs from that involved in TLI and Ultmmerdal, the analysis of the “abstract idea” step in those cases is instructive here. As in those eases, the patent in this case involves the conveyance and manipulation of information using wireless communication and computer technology. While the inventions in those cases involved tangible components, the components were conventional and were used in conventional ways. The same is true in this case, as the claimed cellular telephone is used to receive wireless signals, the claimed graphical user interface is used to display a menu of options to the user, and the claimed broadcasting system is used as the source of streaming content.

Affinity relies on two of this court’s cases to support its contention that the claims in this case are not directed to an abstract idea. The first of those cases is DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014). The claims in that case recited systems used to enable host websites to avoid losing visitors when those visitors clicked on an advertisement on the host site. Instead of directing the visitor to the advertiser’s website, the claimed invention provided for the host to present a composite web page to the visitor’s computer having the “look and feel” of the host web page, along with content based on product information from- the advertiser’s product catalog.

We held that the patents in DDR Holdings were not ineligible under section 101. First, we noted that the claims did not embody a fundamental economic principle or a longstanding commercial practice-. Rather, the challenge of retaining website visitors was a novel. one “particular to the Internet.” Id. at 1257. Moreover, we held that the claimed invention did not simply use computers to serve a conventional business purpose; instead, the invention was “necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks,” Id. The invention entailed the storage of visually perceptible elements of numerous websites and the construction of new, hybrid web pages that merge the “content associated with the products of the third-party merchant with the stored ‘visually perceptible elements’ from the identified host website.” Id.

The DDR-Holdings court distinguished Ultramerbial on the ground that the claims in DDR Holdings did not “broadly and generically claim ‘use of the Internet’ to perform an abstract business practice,” but instead' specified “how interactions with the Internet are manipulated to yield a desired result.” Id. at 1258. Moreover, the DDR Holdings court observed that the claims in that case recited a specific way to automate the creation of a composite web page and did not preempt “every application of the idea of increasing sales by making two web pages look the same.” Id. at 1259. In short, DDR Holdings dealt with a patent that required doing something to a web page, not simply doing something on a web page, a difference that the court regarded as important to the issue of patent eligibility.

That is not the case here. The patent in this case is not directed to the solution of a “technological problem,” Alice, 134 S.Ct. at 2358, nor is it directed to an improvement in computer or network functionality. Instead, it claims the general concept of out-of-region delivery of broadcast content through the use of conventional devices, without offering any technological means of effecting that concept.

The second case relied on by Affinity is Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016). As in DDR Holdings, the focus of the claims in Enfish was on “an improvement to computer functionality itself, not on economic or other tasks for which a computer is used in its ordinary capacity.” Id. at 1336. In this case, the claims are directed not to an improvement in cellular telephones but simply to the use of cellular telephones as tools in the aid of a process focused on an abstract idea. That is not enough to constitute patentable subject matter. See Elec. Power Grp., op. at 1354; see also McRo, Inc. v. Bandai Namco Games Am. Inc., No. 15-1080, 837 F.3d 1299, 1314, 2016 WL 4896481, at *8-9 (Fed. Cir. Sep. 13, 2016) (claims held patent-eligible because they made “a specific asserted improvement in computer animation”).

B

In applying step two of the Mayo/Alice analysis, our task is to “determine whether the claims do significantly more than simply describe [the] abstract method” and thus transform the abstract idea into patentable subject matter. Ultramercial, 772 F.3d at 715. We look to see whether there are any “additional features” in the claims that constitute an “inventive concept,” thereby rendering the claims eligible for patenting even if they are directed to an abstract idea. Alice, 134 S.Ct. at 2357. Those “additional features” must be more than “well-understood, routine, conventional activity.” Mayo, 132 S.Ct. at 1298; Ultramercial, 772 F.3d at 715.

Upon examining claim 1 and the specification of the ’379 patent, we find no “inventive concept” that transforms the abstract idea of out-of-region delivery of regional broadcasting into a patent-eligible application of that abstract idea. The claim simply recites the use of generic features of cellular telephones, such as a storage medium and a. graphical user interface, as well as routine functions, such as transmitting and receiving signals, to implement the underlying idea.

That is not enough. As the Supreme Court stated in Alice, “generic computer implementation” is insufficient to transform a patent-ineligible abstract idea into a patent-eligible invention. Alice, 134 S.Ct. at 2352, 2357. More generally, “simply appending conventional steps specified at a high level of generality” to an abstract idea does not make that idea patentable, Mayo, 132 S.Ct. at 1300. The ’379 patent does not provide an inventive solution to a problem in implementing the idea of remote delivery of regional broadcasting; it simply recites that the abstract idea of remote delivery will be implemented using the conventional components and functions generic to cellular telephones.

Addressing the same general issue, this court in Ultmmercial considered whether the steps set forth in the claims in that case embodied an inventive concept sufficient “to ‘transform’ the claimed abstract idea into patent-eligible subject matter.” 772 F.3d at 715 (citing Alice, 134 S.Ct. at 2357). The court noted that the sequence of steps did not “do significantly more than simply describe [the] abstract method,” id. and that they were simply “conventional steps, specified at a high level of generality,” id. at 716 (quoting Alice, 134 S.Ct. at 2357). The court added that the fact that some of those steps had not previously been employed in the art was not- sufficient, standing alone, “to confer patent eligibility upon the claims at issue.” Id. at 716.

Affinity asserts that the use of a down-loadable application - for presenting a graphical user interface on a cellular telephone capable of listing contents for streaming was novel as of the priority date of the patent. Even assuming that is true, it does not avoid the problem of abstractness.

The essential advance is not in the process of downloading applications, but only in the content of this particular application, and that is nothing but a functionally described display of information. That description does not cross out of the abstract idea category. Elec. Power Grp., op. at 1352, There is no further specification of a particular technology for getting the defined content displayed. Thus, the user-downloadable application does not. constitute an inventive concept sufficient to render the claims patent-eligible.

This court employed similar analysis in Content Extraction & Transmission LLC v. Wells Fargo Bank, National Ass’n, 776 F.3d 1343 (Fed. Cir. 2014). That case involved patents directed to a method of (1) extracting data from hard copy documents using an automated digitizing unit such as a scanner, (2) recognizing specific information from the extracted data, and (3) storing that information in memory. Id. at 1345. The method could be used, for example, in an automated teller machine that recognizes information on a scanned check.

The Content Extraction court held that the claims before it were drawn to the abstract idea of data recognition and storage. Id. at 1346-47. In analyzing the “inventive concept” step,- the court looked to whether the claims involved “more than performance of ‘well-understood, routine, [and] conventional activities previously known to the industry.’ ” Id. at 1347-48 (quoting Alice, 134 S.Ct. at 2359). The court held that they did not. Rather, it noted, the claims merely recited the use of existing scanning and processing technology to recognize and' store data from specific data fields. Id. at 1348. Because it concluded that “the basic character of [the plaintiffs] claims is the abstract idea of extracting and storing data from hard copy documents using generic scanning and processing technology,” the court held the claims patent-ineligible. Id. at.1349.

The court in Content Extraction also held that dependent claims that added “well-known, routine, and conventional functions” did not transform the abstract idea into a patentable invention. Id. at 1349. The dependent claims at issue in that case closely parallel the dependent claims at issue in this one; like the dependent claims in Content Extraction, the dependent claims of the ’379 patent all recite functions that are not inventive but . simply constitute particular choices from within the range of existing content or hardware, such as specifying that the regional broadcast is FM radio or video content, that the graphical user interface displays song information, or that the storage medium buffers content.

A second case addressing the “inventive concept” step in an analogous context is Mortgage Grader, Inc. v. First Choice Loan Services, Inc., 811 F.3d 1314 (Fed. Cir. 2016). The claims in that case were directed to a computer-implemented system for. enabling borrowers to shop anonymously. for loans by having both lenders and borrowers upload information so that the borrower could identify a loan package for which he would be eligible and determine the cost before the lender was made aware of the buyer’s identity. Viewing the claim limitations as a whole, the court held that the invention was directed to the abstract idea of “anonymous loan shopping,” even though it involved computer-implemented communication of particular data between prospective borrowers and lenders. Id. at 1324.

The court rejected the argument that the computer components recited in the claims constituted an “inventive concept.” It held that the claims added “only generic computer components such as an ‘interface,’ ‘network,’ and ‘database,’ ” and that “recitation of generic computer limitations does not make an otherwise ineligible claim patent-eligible.” Id. at 1324-25 (citar tions omitted). The court noted that nothing in the asserted claims purported to improve the functioning of the computer itself'or “effect an improvement in any other technology or technical fiéld.” Mortgage Grader, 811 F.3d at 1325 (quoting Alice, 134 S.Ct. at 2359).

A third case similar to this one is Intellectual Ventures I LLC v. Capital One Bank (USÁ), 792 F.3d 1363 (Fed. Cir. 2015). There, the court found that the patent claims were directed to the abstract idea of tailoring website content based on the viewer’s location or the time of day when the user navigated to the website. Id. at 1369. The court then ruled that the recited “interactive interface” was not a “specific application of the abstract idea that provides an inventive concept.” Id. at 1370.

Noting that the patentee did not assert that it had invented an interactive interface- that manages web- content, the court held that the interface limitation was simply “a generic computer element” and therefore did not constitute an “inventive concept” under the second part of the Mayo/Alice test. Id. at 1370-71; see also Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334 (Fed. Cir. 2015) (“conventional and well-known limitations involving a computer” are not an inventive concept); Internet Patents, 790 F.3d at 1346 (“a known idea, .or one that is routine and conventional, is not inventive in patent terms”); OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (“Beyond the abstract idea of offer-based price optimization, the claims merely recite ‘well-understood, routine conventional activities],’ either by requiring conventional computer activities or routine data-gathering steps, [which] fail ‘to “transform” the claimed abstract idea into a patent-eligible application.’ ”) (quoting Alice, 134 S.Ct. at 2357, 2359, and Mayo, 132 S.Ct. at 1294, 1298)

In arguing that the ’379 patent contains an “inventive concept,” Affinity relies on this court’s recent decision in BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016). The patent in that case was directed to systems for filtering content on the Internet. The claims provided for individually customizable filtering on a remote Internet service provider server.

Addressing the “abstract idea” step, the court held that filtering .content is an abstract idea, and that it remained an abstract idea even when placed in the context of an Internet computer network.. Id. at 1348. The court deferred its discussion of the specific limitations of the claims until the second step of the analysis. Id. at 1349.

With respect to that step, the court held that the claims disclosed an “inventive concept,” consisting of “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. at 1350. The invention took advantage of the ability of some Internet service providers to associate a request for Internet content with a specific individual account. Exploiting that capability, the invention was able to provide customized filtering by locating the filtering system on the Internet service provider’s server. The specificity of the technical solution provided by the claims in BASCOM stands in sharp contrast to the absence of any such specific technical solution in the claims of the ’379 patent.

In applying the principles emerging from the developing body of law on abstract ideas under section 101, this court has noted that claims that are “so result-focused, so functional, as to effectively cover any solution to an identified problem” are frequently held ineligible under section 101. Elec. Power Grp., op. at 1356. That is true in this case, as the claims are drafted in a way that would effectively cover any wireless delivery of out-of-region broadcasting content to a cellular telephone via a network.

The only limitations on the breadth of the result-focused, functional claims in this case are (1) that the application used by the cellular telephone must be wirelessly downloadable, and (2) that the cellular telephone must have a graphical user interface display that allows the user to select the regional' broadcasting' channel. Those additional limitations describe purely conventional features of cellular telephones and the applications that enable them to perform particular functions. They therefore do not meaningfully limit the scope of the claims. .

We conclude that the claims of the ’379 patent are drawn to an abstract idea and therefore ■ fail to meet the standard for eligibility under section 101.

AFFIRMED

      . Affinity® has not separately argued the pat-entability of any of the other claims of the ’379 patent. Although Affinity asserts that the district court erred by conducting a "con-clusory analysis of the ’379 patent's] dependent claims,”,the parties agreed at the hearing before the magistrate judge that claim 1 of the '379 patent was representative. In light of that concession and Affinity’s failure to present "any meaningful argument for the distinctive significance of any claim limitations other than those included” in claim 1, Electric Power Group, LLC v. Alstom S.A., No. 2015-1778, 830 F.3d 1350, 1352, 2016 WL 4073318 (Fed. Cir. Aug, 1, 2016), we treat claim 1 as representative of all the claims of the '379 patent for purposes of this appeal,

      . Essentially the same specification has been used in a family of applications that have given rise to a series of issued patents dealing with different subject matter. The specification deals at length with subjects such as providing access to recorded music and Internet radio. Very little of the specification relates to the subject matter of the '379 patent claims.

      . As the eligibility finding does not turn on the novelty of using a user-downloadable application for the particular purpose set out in file claims, there was no error in the district ' court’s not relying on Affinity's expert’s testimony that it was a novel feature.

      . In any event, as noted above, Affinity has not separately argued the patent eligibility of the dependent claims and thus has waived any argument that those claims should be analyzed separately, from claim 1.