Apple Inc. v. GESTURE TECHNOLOGY PARTNERS, LLC, Cross-Appellant 2023-1475, 2023-1533 Appeals…

United States Court of Appeals
for the Federal Circuit
______________________
APPLE INC.,
Appellant
LG ELECTRONICS INC., LG ELECTRONICS USA,
INC., GOOGLE LLC,
Appellees
v.
GESTURE TECHNOLOGY PARTNERS, LLC,
Cross-Appellant
______________________
2023-1475, 2023-1533
______________________
Appeals from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. IPR2021-
00920, IPR2022-00091, IPR2022-00359.
______________________
Decided: March 4, 2025
______________________
MELANIE L. BOSTWICK, Orrick, Herrington & Sutcliffe
LLP, Washington, DC, argued for appellant Apple, and ap-
pellees LG Electronics Inc., LG Electronics USA, Inc., and
Google LLC. Apple also represented by ABIGAIL C OLELLA,
J ONAS WANG; ELIZABETH MOULTON, San Francisco, CA;
CLIFFORD T. BRAZEN, ADAM P RESCOTT SEITZ , Erise IP, P.A.,
Overland Park, KS; PAUL R. HART , Denver, CO.
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 2
J OHN WITTENZELLNER, Williams, Simons, and Landis
PLLC, Philadelphia, PA, argued for cross-appellant. Also
represented by ERIC CARR, MARK J OHN EDWARD
MCCARTHY , F RED WILLIAMS , Austin, TX.
ERIKA ARNER, Finnegan, Henderson, Farabow, Garrett
& Dunner, LLP, Washington, DC, for appellee Google LLC.
Also represented by DANIEL C OOLEY , Reston, VA.
STANLEY J OSEPH P ANIKOWSKI, III, DLA Piper LLP
(US), San Diego, CA, for appellees LG Electronics Inc., LG
Electronics USA, Inc. Also represented by MATTHEW D.
SATCHWELL , Chicago, IL.
______________________
Before M OORE, Chief Judge, P ROST and STOLL , Circuit
Judges.
P ROST , Circuit Judge.
Apple Inc. (“Apple”), LG Electronics Inc., LG Electron-
ics USA Inc.,1 and Google LLC (“Google”) filed petitions for
inter partes review (“IPR”) of U.S. Patent No. 7,933,431
(“the ’431 patent”). The Patent Trial and Appeal Board
(“Board”) joined the petitions and issued a final written de-
cision, holding claims 1–10, 12, and 14–31 unpatentable
and claims 11 and 13 not unpatentable. Apple Inc. v. Ges-
ture Tech. Partners, LLC, Nos. IPR2021-00920, IPR2022-
00091, IPR2022-00359, 2022 WL 17364390, at *16
(P.T.A.B. Nov. 30, 2022) (“Final Written Decision”). Apple
appeals the Board’s holding that claims 11 and 13 were not
shown to be unpatentable. Gesture Technology Partners,
LLC (“Gesture”) cross-appeals the Board’s holding that
claims 1, 7, 12, and 14 are unpatentable and argues that
by extension all claims that depend from these claims are
1 LG Electronics Inc., LG Electronics USA Inc. are
collectively referred to as LG Electronics.
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 3
also not unpatentable. We affirm the Board’s holding as to
all claims.
BACKGROUND
I
The ’431 patent is titled “Camera Based Sensing in
Handheld, Mobile, Gaming, or Other Devices.” ’431 patent
title. “The invention relates to simple input devices for
computers, particularly, but not necessarily, intended for
use with 3-D graphically intensive activities, and operating
by optically sensing a human input to a display screen or
other object and/or the sensing of human positions or ori-
entations.” Id. at col. 2 ll. 7–11. “The invention uses single
or multiple TV cameras whose output is analyzed and used
as input to a computer, such as a home PC, to typically pro-
vide data concerning the location of parts of, or objects held
by, a person or persons.” Id. at col. 2 ll. 20–23.
For example, in one embodiment, cameras (100 and
101) are located on top of a monitor (102) and are connected
to a computer (106). See id. at Fig. 1A (below); id. at col. 3
ll. 23–30. The cameras also have associated light sources
(111 and 112), e.g. LEDs, that “illuminate targets associ-
ated with any of the fingers, hand, feet and head of the
user, or objects such as 131 held by a user.” Id. at col. 3
ll. 34–36. The cameras sense the illuminated targets, id.
at col. 3 ll. 34–52, and the resulting image information is
then used by a computer “to provide various position and
orientation related functions of use,” id. at col. 11 ll. 57–58.
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 4
The ’431 patent expired in July 2020. See Cross-Appel-
lant’s Br. 57.
II
In February 2021, Gesture sued several companies, in-
cluding Apple, LG Electronics, and Google, of infringing
the ’431 patent. On May 21, 2021, Apple filed an IPR (“Ap-
ple IPR”) challenging the patentability of all claims of the
’431 patent. LG Electronics and Google also filed “nearly
identical” petitions for IPR of the ’431 patent, and the three
IPRs were joined. See No. IPR2021-00920, Paper 16
(P.T.A.B. Mar. 17, 2022); No. IPR2021-00920, Paper 18
(P.T.A.B. May 6, 2022). The petitions raised four grounds
of unpatentability under 35 U.S.C. § 103. Each of the four
grounds relied on U.S. Patent No. 6,144,366 (“Numazaki”),
J.A. 657–803, and the knowledge of a person of ordinary
skill in the art and/or at least one prior-art reference. See
Final Written Decision, 2022 WL 17364390, at *2. The
Board held all claims unpatentable except for claims 11
and 13. Id. at *16.
Also relevant to this appeal is another IPR, filed by
Unified Patents, LLC (“Unified Patents”) on May 14, 2021,
seven days before Apple filed its IPR. See J.A. 2026–88
(Unified Patents, LLC v. Gesture Tech. Partners, LLC,
No. IPR2021-00917, Paper 1 (P.T.A.B. May 14, 2021)
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 5
(“Unified Patents IPR”)). Unified Patents is a multi-mem-
ber organization; Apple is one of its members. J.A. 2090
(Unified Patents, LLC v. Gesture Tech. Partners, LLC,
No. IPR2021-00917, Paper 7, at 1 n.2 (P.T.A.B. Sept. 22,
2021)).
Both the Unified Patents IPR and Apple IPR appealed
here challenged the same patent—the ’431 patent—and
some of the same claims. On November 21, 2022, the Board
issued a final written decision in the Unified Patents IPR,
holding claims 7–9 and 12 unpatentable and holding claims
10, 11, and 13 were not unpatentable. Unified Patents,
LLC v. Gesture Tech. Partners, LLC, No. IPR2021-00917,
2022 WL 17096296, at *20 (P.T.A.B. Nov. 21, 2022).2 The
final written decision in Apple’s IPR (IPR2021-00920) is-
sued nine days later on November 30, 2022. Final Written
Decision, 2022 WL 17364390.
Apple appeals the Final Written Decision as to claims
11 and 13, and Gesture cross-appeals as to the remaining
claims. We have jurisdiction under 28 U.S.C.
§ 1295(a)(4)(A).
D ISCUSSION
“We review claim construction de novo and review any
subsidiary factual findings based on extrinsic evidence for
substantial evidence.” ParkerVision, Inc. v. Vidal, 88 F.4th
969, 975 (Fed. Cir. 2023) (internal citation omitted). “We
review the Board’s legal determination of obviousness de
novo and its factual findings for substantial evidence.”
Outdry Techs. Corp. v. Geox S.p.A., 859 F.3d 1364, 1367
(Fed. Cir. 2017) (internal citation omitted). “Substantial
evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Intel
2 Gesture appealed the Board’s determination as to
claims 7–9 and 12 in Gesture Technology Partners, LLC v.
Unified Patents LLC, No. 23-1444 (Fed. Cir. 2025).
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 6
Corp. v. PACT XPP Schweiz AG, 61 F.4th 1373, 1378
(Fed. Cir. 2023) (internal citation omitted).
Apple challenges the Board’s holding that claims 11
and 13 were not shown to be unpatentable, alleging that
the Board applied the wrong legal standard for obviousness
and ignored Apple’s arguments. Gesture responds that Ap-
ple has no standing to appeal under the estoppel provision
of 35 U.S.C. § 315(e)(1), but even if it did, the Board’s find-
ings as to claims 11 and 13 were supported by substantial
evidence.
Gesture argues in its cross-appeal that substantial ev-
idence does not support the Board’s finding that Numazaki
teaches claims 1, 7, 12, and 14 and that the Board miscon-
strued a limitation in claim 12. Gesture also argues that
the Board does not have jurisdiction over expired patents,
such as the ’431 patent, and thus the Board has no author-
ity to cancel the ’431 patent claims in an IPR. We address
each argument in turn.
I
As to Apple’s appeal, we begin with Gesture’s argu-
ment that Apple has no standing to appeal under 35 U.S.C.
§ 315(e)(1).3 If Apple has no standing, then its appeal must
3 Apple’s appeal pertains only to claims 11 and 13.
In our proceedings, an appellee may only respond to argu-
ments related to an appeal in the appellee’s response brief.
Absent unusual circumstances, which are not present here,
an appellee is not permitted a sur-reply. When a cross-ap-
peal is filed, four briefs are submitted to this court: appel-
lant’s brief, cross-appellant’s brief, appellant’s reply brief,
and cross-appellant’s reply brief. The issues raised in the
appellant’s brief must be contained to the first three briefs
filed—i.e., issues related to the main appeal should not be
argued in the fourth brief because it is effectively a sur-
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 7
be dismissed. If, however, Apple has standing, we must
decide the merits of Apple’s appeal.
A
“The petitioner in an inter partes review of a claim in
a patent . . . that results in a final written decision . . . , or
the real party in interest or privy of the petitioner, may
not . . . maintain a proceeding before the [Patent] Office
with respect to that claim on any ground that the petitioner
raised or reasonably could have raised during that inter
partes review.” 35 U.S.C. § 315(e)(1).
Gesture argues that Apple has no standing to appeal
because § 315(e)(1)’s statutory estoppel provision bars Ap-
ple’s appeal. According to Gesture, once the final written
decision issued in the Unified Patents IPR, Apple could not
“maintain a proceeding” before the Patent Office or an ap-
peal before this court because Apple is a real party in in-
terest or privy of Unified Patents. See Cross-Appellant’s
Br. 25. Apple counters that Gesture forfeited this estoppel
argument because “Gesture . . . never argued before the
Board that Apple was a real party in interest or privy of
Unified [Patents], or that Apple should be estopped from
petitioning for inter partes review of the ’431 patent on that
basis.” Appellant’s Reply Br. 24. Additionally, Apple as-
serts that it is not a real party in interest or privy of Unified
Patents. As explained below, we agree with Apple that
Gesture’s argument that Apple is a real party in interest or
privy of Unified Patents was forfeited.
“Whether a party is [a real party in interest] or privy is
a question of fact . . . .” Uniloc 2017 LLC v. Facebook Inc.,
reply. Yet here, Gesture responded to Apple’s arguments
related to claims 11 and 13 in both its cross-appellant brief
and its cross-appellant reply brief. As such, we view Ges-
ture’s arguments related to claims 11 and 13 in its cross-
appellant reply brief as an improper sur-reply.
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 8
989 F.3d 1018, 1028 (Fed. Cir. 2021); see also Applications
in Internet Time, LLC v. RPX Corp., 897 F.3d 1336, 1351
(Fed. Cir. 2018) (explaining the nature of the inquiry is
“fact-dependent”). As an appellate court, we may not de-
cide questions of fact in the first instance on appeal. Mid-
dleton v. Dep’t of Def., 185 F.3d 1374, 1383 (Fed. Cir. 1999)
(“[A]s an appellate court, we may not find facts.”). Indeed,
we have rejected similar patent owner arguments raising
factual questions as to real party in interest or privy status
for the first time on appeal. See Acoustic Tech., Inc. v. Itron
Networked Sols., Inc., 949 F.3d 1360, 1364 (Fed. Cir. 2020).
In Acoustic Technology, Acoustic sued Itron for in-
fringement of U.S. Patent No. 5,986,574 (“the ’574 patent”)
in March 2010. Id. at 1362. Six years later, Acoustic sued
Silver Spring for alleged infringement of the same patent.
Id. “In response, on March 3, 2017, Silver Spring timely
filed two IPR petitions that challenge[d] the ’574 pa-
tent . . . .” Id. Both IPRs were instituted on September 8,
2017. Id. at 1361. Nine days later, Silver Spring agreed to
merge with Itron. Id. The merger was completed in Janu-
ary 2018, and the Board entered final written decisions in
both IPRs in August 2018, holding all challenged claims
unpatentable. Id. at 1363. Acoustic appealed the merits of
that decision and argued that the “final written decisions
should be vacated because the underlying IPR proceedings
are time-barred under 35 U.S.C. § 315(b).” Id. Section
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, real party in interest, or privy of the
petitioner is served with a complaint alleging
infringement of the patent.
35 U.S.C. § 315(b) (emphasis added). On appeal, for the
first time, Acoustic alleged that Itron was a real party in
interest to the Silver Spring IPRs and was therefore time-
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 9
barred based on the March 2010 complaint that Acoustic
filed against Itron. “We [held] that Acoustic ha[d] waived
its time-bar challenge to the IPRs because it failed to pre-
sent those arguments before the Board.” Acoustic Tech.,
949 F.3d at 1364.4
While Acoustic Technology involved a question under
§ 315(b) and the case before us involves a question under
§ 315(e)(1), both statutory provisions involve a question of
whether a nonparty to an IPR is a real party in interest or
privy of the petitioner under the same statute, 35 U.S.C.
§ 315—i.e., both statutory provisions involve the same
question of fact. In both Acoustic Technology and here, the
patent owner was aware of the relationship between the
IPR petitioner and the alleged real party in interest/privy
many months before the final written decision issued. In
Acoustic Technology, “Acoustic became aware of the merger
as of January 8, 2018, more than seven months before the
Board issued its final written decisions.” 949 F.3d at 1364.
And here Gesture admits that “[d]uring the course of
IPR2021-00917, Unified Patents admitted that Apple, Inc.
(i.e., Petitioner here) was a member when Unified Patents
filed the Unified IPR Petition.” Cross-Appellant’s Br. 15
(citing J.A. 2090). The evidence that Gesture relies on for
this assertion is from an admission by Unified Patents in
September 2021—more than a year before the final written
decisions issued in either the Unified Patent IPR or Apple
IPR. Therefore, like Acoustic Technology, we hold that
Gesture has forfeited its real party in interest/privy
4 While Acoustic Technology used the term “waived,”
we understand it to have been referring to the doctrine of
forfeiture. See In re Google Tech. Holdings LLC, 980 F.3d
858, 862 (Fed. Cir. 2020). We therefore use “forfeiture” or
“forfeited” instead of “waiver” or “waived” in this opinion.
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 10
argument “because it failed to present those arguments be-
fore the Board.” Acoustic Tech., 949 F.3d at 1364.5
B
Having determined that Gesture forfeited its argument
under § 315(e) for failure to raise the factual dispute before
the Board, we turn to the merits of Apple’s appeal which
relates to claims 11 and 13 of the ’431 patent, which recite:
Apparatus according to claim 7, further includ-
ing means for transmitting information.
’431 patent claim 11.
Apparatus according to claim 7, wherein said
apparatus is a cellular phone.
Id. at claim 13.
Apple argues that these claims are unpatentable as ob-
vious in view of Numazaki and the knowledge of person of
ordinary skill in the art. Specifically, Apple contends that
Numazaki’s fifth embodiment teaches a conference record
system or TV telephone, and Numazaki’s eighth embodi-
ment teaches a portable device. Apple argues that a person
of ordinary skill in the art would be motivated to combine
these two embodiments—i.e., the modification from a TV
telephone to a cellphone would have been obvious based on
the knowledge of a person of ordinary skill in the art. Ap-
pellant’s Br. 26; see also id. at 28–29 (“[A] person of
5 While we maintain that Gesture’s cross-appellant’s
reply brief was an improper sur-reply, we note that its ar-
gument raised there, that standing may never be waived,
is not correct. See Cross-Appellant’s Reply Br. 4. While
Article III standing may not be waived, statutory standing
arguments like those raised here are subject to different
rules of waiver and forfeiture. See Brooklyn Brewery Corp.
v. Brooklyn Brew Shop, 17 F.4th 129, 140 (Fed. Cir. 2021).
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 11
ordinary skill in July 1999 would have interpreted Numa-
zaki’s disclosure of a ‘TV telephone’ as a cellular phone
(with a cellular transceiver) based on the state of the art at
the time.”). But the Board disagreed.
The Board began its analysis of these claims with Ap-
ple’s argument that “means for transmitting information”
in claim 11 is subject to 35 U.S.C. § 112 ¶ 6 “and that the
structure corresponding to the claimed function is ‘at least
a wireless cellular transceiver.’” Final Written Decision,
2022 WL 17364390, at *13. The Board accepted that “con-
struction as consistent with the current record.” Id. at *5.
But Apple’s petition in addressing claim 11 “include[d] no
analysis regarding whether the transmission functionality
included in Numazaki[] . . . is an equivalent of ‘a wireless
cellular transceiver’ or a cell phone.” Id. at *14. In other
words, despite Apple’s argument for a specific claim con-
struction, the petition presented no argument as to how
Numazaki, alone or in view of the knowledge of a person of
ordinary skill in the art, would meet this claim construc-
tion. See J.A. 165–66.
With respect to claim 13, the Board concluded that Ap-
ple’s expert testimony did not support the idea that “vide-
oconference telephones were also known as cellular
videophones.” Final Written Decision, 2022 WL 17364390,
at *14 (internal citations omitted). Apple’s expert had ad-
mitted that “videophones were not prevalent in the mar-
ketplace at the time.” J.A. 167; see also id. (“researchers
were working on this technology” (emphasis added)). In-
deed, Apple’s expert instead relied on a New York Times
newspaper article “discussing the global efforts preceding
the launch of a market leading cellular videophone.” See
J.A. 906 (emphasis added); see also J.A. 1026–32. And the
Board found that this article “[did] not discuss videoconfer-
ence telephones or equate videoconference telephones with
cellular videophones.” Final Written Decision, 2022 WL
17364390, at *14.
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 12
According to Apple, the Board erred by (1) misapplying
the legal standard for obviousness by only looking to the
explicit disclosures of Numazaki instead of Numazaki in
view of the knowledge of a person of ordinary skill in the
art and (2) failing to engage in reasoned decision making
in violation of the Administrative Procedure Act (“APA”).
Appellant’s Br. 26. We disagree. While it is correct that
the Board’s decision first addressed whether Numazaki ex-
plicitly discloses wireless cellular transceivers or cell
phones, the Board did not stop there. As explained above,
the Board also rested on the petition’s lack of analysis
about how Numazaki (with or without the knowledge of a
person of ordinary skill in the art) would apply to the claim
construction that Apple had advocated for—i.e., “[t]he Pe-
tition includes no analysis . . . .” Final Written Decision,
2022 WL 17364390, at *14. “Ultimately, it is the peti-
tioner’s burden to present a clear argument.” See Netflix,
Inc. v. DivX, LLC, 84 F.4th 1371, 1377 (Fed. Cir. 2023); see
also Intelligent Bio-Systems, Inc. v. Illumina Cambridge
Ltd., 821 F.3d 1359, 1369 (Fed. Cir. 2016) (“It is of the ut-
most importance that petitioners in the IPR proceedings
adhere to the requirement that the initial petition identify
‘with particularity’ the ‘evidence that supports the grounds
for the challenge to each claim.’” (quoting 35 U.S.C.
§ 312(a)(3) (2012))). And with respect to claim 13, the
Board simply found the evidence did not support Apple’s
argument. Final Written Decision, 2022 WL 17364390,
at *14. This is not a misapplication of the obviousness
standard.
We likewise disagree with Apple’s APA argument,
which alleges that the Board “ignore[d] much of its evi-
dence.” Appellant’s Br. 39. According to Apple, the Board
ignored Apple’s argument that Numazaki’s fifth embodi-
ment in view of the knowledge of a person of ordinary skill
in the art teaches a cellular phone, which was allegedly
supported by the New York Times article and discussions
in Numazaki about low-cost communications. But Apple
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 13
overstates what the Board ignored. Indeed, the Board did
consider these arguments. Final Written Decision, 2022
WL 17364390, at *14. And it applied a reasoned analysis
for rejecting those arguments. Id. While we agree that the
Board did not expressly explain its thoughts on the rele-
vance of low-cost communications, “there is no requirement
that the Board expressly discuss each and every negative
and positive piece of evidence lurking in the record to eval-
uate a cursory argument.” Novartis AG v. Torrent Pharms.
Ltd., 853 F.3d 1316, 1328 (Fed. Cir. 2017); see also Yeda
Rsch. and Dev. Co. v. Mylan Pharms. Inc., 906 F.3d 1031,
1046 (Fed. Cir. 2018) (The Board “is not required . . . to ad-
dress every argument raised by a party or explain every
possible reason supporting its conclusion.” (cleaned up)).
In sum, we disagree that the Board “utterly ‘failed to . . .
evaluate [Apple’s] primary argument.’” Appellant’s Br. 42
(quoting Power Integrations, Inc. v. Lee, 797 F.3d 1318,
1325 (Fed. Cir. 2015)). The Board did not commit an APA
violation.
For the reasons above, we affirm the Board’s determi-
nation that claims 11 and 13 were not shown to have been
unpatentable.
II
Gesture argues in its cross-appeal that the Board erred
in determining that Numazaki renders obvious claims 1, 7,
12, and 14. We disagree.
A
Claim 1 recites:
A method for controlling a handheld computing
device comprising the steps of:
holding said device in one hand;
moving at least one finger in space in order to
signal a command to said device;
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 14
electro-optically sensing light reflected from
said at least one finger using a sensing means
associated with said device;
determining from said sensed light the move-
ment of said finger, and
using said sensed finger movement infor-
mation, controlling said device in accordance
with said command.
’431 patent claim 1 (emphasis added). Before the Board,
Apple argued that Numazaki’s eighth embodiment, de-
picted in Figure 78, “depicts a portable version of the basic
information input generation apparatus described in
[Numazaki’s] first embodiment.” Appellant’s Reply Br. 37;
see J.A. 150–52. According to Apple, together Numazaki’s
first and eighth embodiments render claim 1 obvious. The
Board agreed.
Gesture argues that substantial evidence does not sup-
port that view because Numazaki does not teach or suggest
“electro-optically sensing light reflected from said at least
one finger using a sensing means associated with said de-
vice.” Cross-Appellant’s Br. 52. Specifically, Gesture dis-
putes that Numazaki’s “photo-detection sensor unit” is the
claimed “sensing means,” id., because there is no “photo-
detection sensor unit” in the first seven embodiments and
the first embodiment cannot be combined with the eighth
embodiment. Id. at 53–54. The Board properly rejected
this argument, explaining that “the position of Patent
Owner and Patent Owner’s declarant is inconsistent with
the express disclosure of Numazaki that makes clear that
the photo-detection section of the eighth embodiment, in-
cluding the ‘photodetection sensor unit’ of Figure 78, incor-
porates the disclosure of the photodetection section of the
prior embodiments, including Figure 2.” Final Written De-
cision, 2022 WL 17364390, at *9; see also Numazaki col. 50
ll. 21–24 (“This eighth embodiment is directed to a system
configuration incorporating the information input
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 15
generation apparatus of the present invention as described
in the above embodiments.”).
Gesture also contends that the Board improperly
“mapped Numazaki’s ‘reflected light extraction unit’ to the
claimed ‘sensing means.’” Cross-Appellant’s Br. 54. Ges-
ture bases this argument on an incomplete quotation from
the Final Written Decision that, according to Gesture, says
“Numazaki’s reflected light extraction unit . . . teach[es] a
camera/sensing unit.” Cross-Appellant’s Br. 54 (quoting
Final Written Decision, 2022 WL 17364390, at *9). The full
quote, however, states: “Thus, we determine that one of
skill in the art would have understood Numazaki to teach
that the ‘photo-detection sensor unit’ in Fig. 78 is or at least
includes a camera/sensing means, just as Numazaki’s re-
flected light extraction unit, with its two photo detection
units in Figure 2, teach a camera/sensing means.” Final
Written Decision, 2022 WL 17364390, at *9. Based on the
full quote, we agree with Apple that “the Board was con-
sistently mapping the sensing means to the photo-detec-
tion units, but pointing out that those components are
housed within the reflected light extraction unit.” Appel-
lant’s Reply Br. 46. In this quotation, discussing both Fig-
ure 78 and Figure 2, the Board specifically pointed to the
“photo-detection sensor unit” and “photo detection unit”6 in
identifying the “sensing means.”
6 Throughout Gesture’s briefs, it contends that it is
unclear whether Numazaki’s “photo-detection sensor unit”
in Figure 78 is different from the “photo-detection units” in
Figure 2. This argument is unpersuasive. Both compo-
nents perform the same functionality as described in the
specification, both discuss the components as “photo-detec-
tion sections,” and both have nearly identical names. Com-
pare Numazaki col. 10 ll. 40–46; id. at col. 11 ll. 20–25,
with id. at col. 53 ll. 20–25.
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 16
Additionally, Gesture argues that Numazaki’s “feature
data generation unit” does not “determine[] . . . the move-
ment of said finger” from the light sensed by Numazaki’s
“photo-detection sensor unit.” Cross-Appellant’s
Br. 52–53. Claim 1 requires “sensing light . . . using a sens-
ing means [and] determining from said sensed light the
movement of said finger.” As we concluded above, the
Board properly found that the “sensing means” is Numa-
zaki’s “photo-detection sensor unit.” Therefore, to meet the
limitation of claim 1, Numazaki’s “photo-detection sensor
unit” must sense light, and Numazaki’s computing device
must determine from the sensed light the movement of the
finger. Gesture alleges that Numazaki does meet this lim-
itation because there is no drawing or express disclosure in
Numazaki that shows a relationship between the “photo-
detection sensor unit” and Numazaki’s computing device
(i.e., “the feature data generation unit”). As a preliminary
point, Gesture’s argument assumes that express disclosure
is required, but Apple’s argument is grounded in obvious-
ness, which does not require an express disclosure. See,
e.g., KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)
(“[T]he analysis need not seek out precise teachings di-
rected to the specific subject matter of the challenged
claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art
would employ.”). Regardless, Gesture does not appear to
have raised this argument before the Board, and we there-
fore conclude it was forfeited. See J.A. 247–49;
J.A. 341–45; Cross-Appellant’s Reply Br. 8–10 (providing
no reply to Apple’s contention that this argument was for-
feited).
For the reasons above, we conclude that substantial ev-
idence supports the Board’s finding that Numazaki teaches
the disputed “electro-optical sensing” limitation.
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 17
B
Gesture’s next set of arguments relates to independent
claims 7 and 14. In particular, Gesture argues that the
Board erred by (1) mapping the claimed “camera means” in
claim 7 and “camera” in claim 14 to Numazaki’s “photo-de-
tection sensor unit”; (2) finding that Numazaki teaches
claims 7 and 14’s limitation that a “computer means” “an-
alyz[es] said image”; and (3) finding that Numazaki
teaches a “computer means” as construed by the Board un-
der 35 U.S.C. § 112, ¶ 6. We address each of these argu-
ments in turn, below. The relevant portions of claims 7 and
14 recite:
Handheld computer apparatus comprising:
. . .
a camera means associated with said housing
for obtaining an image using reflected light of
at least one object positioned by a user operat-
ing said object;
computer means within said housing for ana-
lyzing said image to determine information
concerning a position or movement of said ob-
ject; and
. . . .
’431 patent claim 7.
A method for controlling a handheld computing
device comprising the steps of:
. . .
associating a camera with said device, said
camera viewing at least a portion of the body of
a user operating said device or an object held
by said user, in order provide image data con-
cerning said portion or object;
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 18
using said computer, analyzing said image
data to determine information concerning a
user input command; and
. . . .
Id. at claim 14.
1
The Board found that Numazaki’s “camera” / “camera
means” is its “reflected light extraction unit, with its two
photo detection units in Figure 2 teach a camera.” Final
Written Decision, 2022 WL 17364390, at *8. In disputing
this finding, Gesture repeats the same arguments it made
with respect to claim 1—i.e., that Numazaki is unclear as
to the difference between its “photo-detection sensor unit”
and “photo-detection units” and that the Board erred in
mapping Numazaki’s “reflected light extraction unit” to the
“camera means.” See Cross-Appellant’s Br. 49–50. For the
same reasons explained above with respect to claim 1, we
also reject these arguments in the context of claim 7. See
Discussion II.A., supra at 15, 16 n.6.
2
Next, Gesture disputes that Numazaki teaches a “com-
puter means . . . for analyzing said image to determine in-
formation concerning a position or movement of said
object.” Cross-Appellant’s Br. 41. So the argument goes,
“the image” must be obtained from the “camera means,”
and according to Gesture, there is no relationship between
the identified “computer means” and “camera means” in
Numazaki. Cross-Appellant’s Br. 41. Specifically, Gesture
argues that there is no relationship between the “feature
data generation unit” (i.e., the Board-identified “computer
means”) and Numazaki’s “photo-detection sensor unit”
(i.e., the Board-identified “camera means”) and that the
Board erred by instead equating Numazaki’s “photo-
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 19
detection sensor unit” with its “reflected light extraction
unit.” Cross-Appellant’s Br. 42.7
As explained above, express disclosures are not re-
quired when a petitioner is arguing obviousness. KSR, 550
U.S. at 418. Additionally, substantial evidence supports
the Board’s finding that Numazaki teaches a relationship
between Numazaki’s “feature data generation unit” and
Numazaki’s “photo-detection sensor unit.” Indeed, Gesture
admits that Numazaki’s “feature data generation unit” has
a relationship with its “reflected light extraction unit.”
Cross-Appellant’s Br. 42; see also Numazaki, Fig. 1 (show-
ing a relationship between the “reflected light extraction
unit” and “the feature data generation unit”). Figure 2 fur-
ther shows that the “photo-detection units” are a part of the
“reflected light extraction unit.” See id. at Fig. 2. If the
“reflected light extraction unit” has a relationship with the
“feature data generation unit,” then so do the “reflected
light extraction unit’s” components—i.e., the “photo-detec-
tion units” / “photo-detection sensor units.”
For the same reasons, we disagree that the Board
equated Numazaki’s “photo-detection sensor unit” with its
“reflected light extraction unit.” See Discussion II.A, supra
at 15. As explained above, the Board’s statement that
“Numazaki’s reflected light extraction unit, with its two
photo detection units in Figure 2, teach a camera/sensing
means,” Final Written Decision, 2022 WL 17364390, at *9,
reflects that the Board consistently mapped the camera
7 Gesture again argues that it is unclear whether the
“photo-detection sensor unit” in Numazaki’s eighth embod-
iment is incorporated in Numazaki’s embodiments 1–7.
Cross-Appellant’s Br. 43. As explained above, we find this
argument unpersuasive in light of Numazaki’s express dis-
closure that the eighth embodiment may be incorporated
with the earlier embodiments. See Numazaki col. 50
ll. 21–24.
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 20
means to the photo-detection units. See Appellant’s Reply
Br. 46.
Likewise, we are unpersuaded by Gesture’s argument
that because the “reflected light extraction unit” contains
additional functionality (e.g., the “difference calculation
unit”), that somehow undermines that Numazaki “photo-
detection units” in Numazaki’s “reflected light extraction
unit” disclose a “camera means.” See Cross-Appellant’s
Br. 44–45. Indeed, the Board rejected the argument that
“photo-detection unit” does not specifically teach or suggest
a camera and concluded that “[t]he disclosure of Numazaki
when discussing photo-detecting is directed to taking im-
ages; and according to Patent Owner obtaining images ‘is
what cameras do.’” Final Written Decision, 2022 WL
17364390, at *11 (citing J.A. 339 (Patent Owner Re-
sponse)); see also Numazaki col. 11 ll. 20–31 (describing the
photo-detection unit “detects the optical image”); id. at
col. 11 ll. 38–52. That finding is supported by substantial
evidence.
Finally, we reject Gesture’s argument that Numazaki
does not teach analyzing images obtained from the “photo-
detection units.” Cross-Appellant’s Br. 46. Gesture con-
tends that the function of “analyzing an image ‘to deter-
mine positioning or movement of an object” is missing from
Numazaki because Numazaki requires subtracting one im-
age from another image and this subtraction process does
not involve determining information about the position of
movement of the imaged object. Id. But Apple did not rely
on this subtraction process as the embodiment of Numa-
zaki that teaches this limitation. See Final Written Deci-
sion, 2022 WL 17364390, at *13 n.14. Thus, we agree with
the Board that this argument is “not relevant.” Id.
3
The Board determined that claim 7’s limitation that
reads “computer means within said housing for analyzing
said image to determine information concerning a position
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 21
or movement of said object” is a means-plus-function limi-
tation under 35 U.S.C. § 112, ¶ 6. Gesture primarily ar-
gues that Numazaki does not teach the claimed structure
that “includes a computer/processor programmed (1) to
identify either natural or artificial features on an object as
described . . . or (2) to track the movement using one of the
disclosed methods.” Final Written Decision, 2022 WL
17364390, at *12; see Cross-Appellant’s Br. 46–49. Under
the Board’s mapping of Numazaki to the ’431 patent claim
limitations, this would require Numazaki’s “compact port-
able information device” (i.e., the claimed “handheld com-
puter apparatus”) to incorporate Numazaki’s “feature data
generation unit” (i.e. computer means) software. Final
Written Decision, 2022 WL 17364390, at *13. Despite Ges-
ture’s arguments here focused on hardware, Gesture ad-
mitted before the Board that Numazaki discloses this
structure—i.e. Gesture admitted that “Numazaki discloses
that ‘it is also possible to realize this operation of the fea-
ture data generation unit in a form of software.’” See id.
(quoting J.A. 426 (Gesture’s IPR sur-reply)). This admis-
sion was supported by Numazaki and expert testimony.
See Numazaki col. 27 ll. 41–56; J.A. 903–04. We therefore
conclude that the Board’s determination that Numazaki
teaches the claimed structure is supported by substantial
evidence. To the extent Gesture’s argument is a criticism
of Numazaki’s “silence on how” this was implemented, this
court has repeatedly held “in general, a prior art reference
asserted under § 103 does not necessarily have to enable
its own disclosure, i.e., be ‘self-enabling,’ to be relevant to
the obviousness inquiry.” Raytheon Techs. Corp. v. General
Elec. Co., 993 F.3d 1374, 1380 (Fed. Cir. 2021) (citing Sym-
bol Techs., Inc. v. Opticon, Inc., 935 F.2d 1569, 1578 (Fed.
Cir. 1991)). Gesture provides no reason for why we should
deviate from that general rule here.
For the reasons above, substantial evidence supports
the Board’s findings that Numazaki teaches claims 7 and
14.
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 22
C
With respect to claim 12, Gesture argues that the
Board misconstrued the term “light source for illuminating
said object” and that Numazaki does not render claim 12
obvious. Cross-Appellant’s Br. 37–41. We disagree.
1
As to claim construction, the Board gave the term its
plain and ordinary meaning. But Gesture argues this is
incorrect. See Cross-Appellant’s Br. 37 (criticizing the
Board for concluding that “‘a light source for illuminating
said object,’ simply means exactly what it says”). Gesture
instead argues that “the most straightforward meaning of
claim 12 is that the light source of the handheld computer
apparatus illuminates the object while the ‘camera means’
obtains an imagine of the object.” Id. at 38. Gesture bases
its construction on reading claims 7 and 12 together:
Handheld computer apparatus comprising:
. . .
a camera means associated with said housing
for obtaining an image using reflected light of
at least one object positioned by a user operat-
ing said object; . . . .
’431 patent claim 7
Apparatus according to claim 7, further includ-
ing a light source for illuminating said object.
Id. at claim 12. According to Gesture, because claim 7 in-
cludes a “camera means . . . using reflected light,” then the
light source in claim 12 must be turned on when the “cam-
era means” obtains the image.
“[T]he words of a claim ‘are generally given their ordi-
nary and customary meaning.’” Phillips v. AWH Corp., 415
F.3d 1303, 1312 (Fed. Cir. 2005) (quoting Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)).
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 23
“[T]he claims themselves provide substantial guidance as
to the meaning of particular claim terms.” Id. at 1314.
This includes reading a dependent claim in the context of a
claim on which it depends. Thus, we agree with Gesture
that claims 7 and 12 should be read together. But read
together, we agree with the Board that claim 12 should be
read according to its plain and ordinary meaning. In con-
trast to the plain and ordinary meaning, Gesture’s claim
construction appears to add a temporal limitation to the
claims that is simply not there and relies on an argument
that claim 7’s “reflected light” implicitly provides an ante-
cedent basis for claim 12’s “light source.” We disagree that
claim 7 provides such an antecedent basis. See Final Writ-
ten Decision, 2022 WL 17364390, at *5.
2
We further disagree with Gesture’s argument that sub-
stantial evidence does not support the Board’s finding that
Numazaki teaches claim 12. While not entirely clear, Ges-
ture appears to argue that the “light source” in claim 12 is
turned off during photo detection and therefore it is not “il-
luminating said object.” See Cross-Appellant’s Br. 39–40
(“[e]ach of the first photo-detection unit 109 and the second
photo-detection unit 110 [of the reflected light extraction
unit] detects the optical image [of the object] formed on the
photo-detection plane . . . the lighting unit 101 emits the
light when the first photo-detection unit 109 is in a photo-
detecting state, whereas the lighting unit 101 does not emit
the light when the second photo-detection unit 110 is in a
photo-detecting state.” (quoting Numazaki col. 11 ll. 20-33)
(alterations and emphasis in original)). Even if this is true,
the problem for Gesture is that the light is only off when
the second detection unit is in a photo-detecting state. The
same is not true for unit 109. Indeed, Numazaki expressly
states that “lighting unit 101 emits the light when the first
photo-detection unit 109 is in a photo-detecting state.”
Numazaki col. 11 ll. 20-33 (emphasis added). Gesture does
not dispute this. See Cross-Appellant’s Br. 40 (stating the
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APPLE INC. v. GESTURE TECHNOLOGY PARTNERS , LLC 24
“‘lighting unit’ . . . is off for at least half the time” (emphasis
in original)). Because the light unit is also on for at least
half the time, the Board’s determination that Numazaki
discloses claim 12 is supported by substantial evidence.
D
Gesture’s final argument is that the Board does not
have jurisdiction over IPRs involving expired patents, in-
cluding the ’431 patent at issue here. See Cross-Appel-
lant’s Br. 55–57. We rejected this same argument in Apple
Inc. v. Gesture Technology Partners, LLC, 127 F.4th 364,
368–69 (Fed. Cir. 2025) and confirmed that “the Board has
jurisdiction over IPRs concerning expired patents.” Id.
at 368. For the same reasons, we reject this argument
here.
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the Board’s holding that claims 1–10, 12, and 14–31
of the ’431 patent are unpatentable and claims 11 and 13
were not shown to be unpatentable.
AFFIRMED
COSTS
No costs.
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