Xactware Solutions, Inc. v. Eagle View Technologies, Inc.

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
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XACTWARE SOLUTIONS, INC.,
Appellant
v.
EAGLE VIEW TECHNOLOGIES, INC.,
Appellee
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2018-1053, 2018-1055, 2018-1056, 2018-1110
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Appeals from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. IPR2016-
00589, IPR2016-00590, IPR2016-00591, IPR2016-00592.
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Decided: March 6, 2019
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MARK N IKOLSKY , McCarter & English, LLP, Newark,
NJ, argued for appellant. Also represented by S COTT S.
CHRISTIE, T IMOTHY P ATRICK H OMLISH , MATTHEW A DAM
SKLAR; L EE CARL BROMBERG, Boston, MA.
J OHN C. O'Q UINN, Kirkland & Ellis LLP, Washington,
DC, argued for appellee. Also represented by J ASON M.
WILCOX ; ADAM R. ALPER, San Francisco, CA; G IANNI CUTRI,
Chicago, IL.
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XACTWARE SOLUTIONS, INC. v. EAGLE VIEW TECHNOLOGIES,
INC.
2
Before P ROST , Chief Judge, MOORE and WALLACH ,
Circuit Judges.
P ROST , Chief Judge.
Xactware Solutions, Inc. (“Xactware”) appeals the final
written decisions of the Patent Trial and Appeal Board
(“Board”) in four inter partes reviews. As relevant to this
appeal, the Board upheld the validity of certain claims of
U.S. Patent Nos. 8,825,454 (“the ʼ454 patent”); 8,818,770
(“the ʼ770 patent”); 8,209,152 (“the ʼ152 patent”); and
9,135,737 (“the ʼ737 patent”). We affirm.
The parties spent most of their briefing in these ap-
peals debating the evidentiary showing required for a pa-
tent owner to be given the presumption of nexus as to
evidence it offers to show secondary considerations of non-
obviousness. We do not reach that issue for two reasons.
First, this was not clearly at issue in the parties’ briefing
before the Board. In its Patent Owner Response, Eagle
View Technologies, Inc. (“Eagle View”) argued that a nexus
existed between its secondary considerations evidence and
the patent claims because the relevant products “are the
invention disclosed.” E.g., J.A. 1162. In its Reply,
Xactware merely challenged the credibility of Eagle View’s
expert and argued that the expert’s testimony failed to
demonstrate that the products actually practiced the
claimed inventions. E.g., J.A. 1786–88. The evidentiary
showing necessary to earn the presumption of nexus was
simply not at issue before the Board. Second, substantial
evidence supports the Board’s finding of nexus based on the
limited evidentiary record on this issue.
Appellant raises a few other arguments apart from the
challenge to the Board’s nexus finding. With respect to the
ʼ770 patent, we hold that substantial evidence supports the
Board’s finding that the “moving” and “movement” limita-
tions are not disclosed in Yair Avrahami, et al., Extraction
of 3D Spatial Polygons Based on the Overlapping Criterion

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XACTWARE SOLUTIONS, INC. v. EAGLE VIEW TECHNOLOGIES,
INC. 3
for Roof Extraction from Aerial Images, International Ar-
chives of Photogrammetry, Remote Sensing and Spatial In-
formation Sciences, August 29–30, 2005 (“Avrahami”). We
also see no error in the Board’s decision not to consider
Xactware’s untimely-raised argument that Avrahami dis-
closes the “moving” and “movement” limitations by the
placement of subsequent seed points after placement of a
first seed point, as well as the addition of segmentations
around each seed point. As to Appellant’s arguments re-
garding the ʼ152 patent, we see no reversible error in the
Board’s treatment of claims 10, 15, and 25.
We have considered Appellant’s remaining arguments
and find them unpersuasive. We therefore affirm the
Board’s final written decisions in these four inter partes re-
views.
AFFIRMED

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