Lynk Labs, Inc. v. Samsung Electronics Co., Ltd.

United States Court of Appeals
for the Federal Circuit
______________________
LYNK LABS, INC.,
Appellant
v.
SAMSUNG ELECTRONICS CO., LTD.,
Appellee
DERRICK BRENT, ACTING UNDER SECRETARY
OF COMMERCE FOR INTELLECTUAL PROPERTY
AND ACTING DIRECTOR OF THE UNITED
STATES PATENT AND TRADEMARK OFFICE,
Intervenor
______________________
2023-2346
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2022-
00149.
______________________
Decided: January 14, 2025
______________________
STEPHEN T ERRY SCHREINER , Carmichael IP, Tysons,
VA, argued for appellant. Also represented by J AMES
C ARMICHAEL, STEPHEN MC BRIDE , MINGHUI YANG.
NAVEEN MODI, Paul Hastings LLP, Washington, DC,
argued for appellee. Also represented by J OSEPH P ALYS,
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 2
I GOR V ICTOR T IMOFEYEV , DAVID VALENTE , DANIEL
Z EILBERGER .
MICHAEL S. F ORMAN, Office of the Solicitor, United
States Patent and Trademark Office, Alexandria, VA, ar-
gued for intervenor. Also represented by PETER J. A YERS,
A MY J. NELSON, MAUREEN DONOVAN QUELER , FARHEENA
Y ASMEEN RASHEED.
______________________
Before L OURIE , P ROST, and STARK, Circuit Judges.
P ROST, Circuit Judge.
Lynk Labs, Inc. (“Lynk Labs”) appeals from a final
written decision of the Patent Trial and Appeal Board
(“Board”) in an inter partes review (“IPR”) determining
claims 7–13 and 15–17 of U.S. Patent No. 10,687,400 (“the
’400 patent”) unpatentable. We affirm.
This case presents the question of when a published
patent application is deemed prior art in an IPR—can it be
as of the application’s filing date, or only as of the applica-
tion’s publication? As explained below, we agree with the
Board that it is the former: under the statutory provisions
applicable here, a published patent application can be
deemed prior art in an IPR as of the application’s filing
date. And, because we otherwise see no error in the Board’s
unpatentability determinations, we affirm.
B ACKGROUND
I
The ’400 patent “generally relates to light emitting di-
odes (‘LEDs’) and LED drivers” and more “specifically re-
lates to alternating current (‘AC’) driven LEDs, LED
circuits, and AC drive circuits and methods.” ’400 patent
col. 1 ll. 45–48 (cleaned up). The specification explains that
“LED based lighting may be used for general lighting, spe-
cialty lighting, signs[,] and decoration such as for
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 3
Christmas tree lighting.” Id. at col. 2 ll. 8–11. The claims
recite lighting systems with various LED circuit configura-
tions. For example, independent claim 7 recites:
A lighting system comprising:
an LED circuit array comprising an LED circuit
comprising a plurality of LEDs connected in series;
a capacitor;
a bridge rectifier configured to receive an input AC
voltage from a mains power source;
a driver connected to the bridge rectifier and con-
figured to provide a rectified output AC voltage to
the LED circuit array;
wherein a forward voltage of the LEDs of the LED
circuit array matches the rectified input AC volt-
age output of the driver; and
wherein the LED circuit array, the capacitor, the
bridge rectifier, and the driver are all mounted on
a single substrate.
Id. at claim 7.
II
In November 2021, Samsung Electronics Co., Ltd.
(“Samsung”) filed a petition for IPR of the ’400 patent, chal-
lenging claims 7–20 as unpatentable for obviousness under
35 U.S.C. § 103. Lynk Labs then statutorily disclaimed
claims 14 and 18–20, leaving only claims 7–13 and 15–17
subject to the IPR.
Relevant here are Samsung’s first six grounds of un-
patentability, each of which relied on U.S. Patent Applica-
tion Publication No. 2004/0206970 (“Martin”) and which
together encompassed claims 7–13 and 17. See Samsung
Elecs. Co. v. Lynk Labs, Inc., IPR2022-00149, Paper 33,
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 4
at 68 (P.T.A.B. June 26, 2023) (“Final Written Decision”);
J.A. 1867–79 (Martin).
The Martin application was filed before the ’400 pa-
tent’s priority date but was published only after that date.
Specifically, Martin was filed on April 16, 2003; the
’400 patent’s priority date is February 25, 2004;1 and Mar-
tin was published on October 21, 2004. Martin was later
abandoned and never matured into a patent.
Across Samsung’s first six grounds of unpatentability,
the Board determined claims 7–13 and 17 unpatentable for
obviousness. See Final Written Decision, at 68. After re-
jecting Lynk Labs’ argument that Martin could not serve
as prior art to the ’400 patent in an IPR, the Board deter-
mined that each of the claims at issue in this appeal would
have been obvious in view of Martin and at least one other
reference. Five of the six grounds at issue rely on Nerone2
as the primary reference in view of at least Martin, and the
Board relied on the combination of Nerone and Martin to
determine claims 7–13 unpatentable.3 Id.
1 Lynk Labs maintains that the ’400 patent’s priority
date is its earliest effective filing date of February 25, 2004,
see, e.g., Appellant’s Br. 57, and Samsung assumed as
much for purposes of the IPR, see J.A. 6049. For purposes
of this opinion, we will likewise treat the ’400 patent’s pri-
ority date as February 25, 2004.
2 U.S. Patent No. 6,411,045 (“Nerone”),
J.A. 2253–61.
3 Lynk Labs’ only challenge as to claim 17 is its ar-
gument that Martin could not serve as prior art to the
’400 patent in the IPR. Across Samsung’s eighth and ninth
grounds of unpatentability—neither of which relied on
Martin—the Board determined that claims 15 and 16 are
unpatentable for obviousness, and Lynk Labs does not
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 5
Lynk Labs timely appealed. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(4)(A).
DISCUSSION
“Statutory interpretation is an issue of law that we re-
view de novo.” Facebook, Inc. v. Windy City Innovations,
LLC, 973 F.3d 1321, 1330 (Fed. Cir. 2020). “We review
claim construction de novo and review any subsidiary fac-
tual findings based on extrinsic evidence for substantial ev-
idence.” ParkerVision, Inc. v. Vidal, 88 F.4th 969, 975
(Fed. Cir. 2023) (cleaned up). “We review the Board’s legal
determination of obviousness de novo and its factual find-
ings for substantial evidence.” Outdry Techs. Corp. v. Geox
S.p.A., 859 F.3d 1364, 1367 (Fed. Cir. 2017). “Substantial
evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Intel
Corp. v. PACT XPP Schweiz AG, 61 F.4th 1373, 1378
(Fed. Cir. 2023) (cleaned up).
Lynk Labs raises three main arguments on appeal:
(1) Martin could not serve as prior art to the ’400 patent in
an IPR because, although Martin was filed before the
’400 patent’s priority date, it was published (and thus be-
came publicly accessible) only thereafter; (2) the Board
erred in construing “an LED circuit comprising a plurality
of LEDs connected in series” as recited in claim 7; and
(3) the Board erred in construing “a forward voltage of the
LEDs of the LED circuit array matches the rectified input
AC voltage output of the driver” as recited in claim 7. As
to the two claim-construction arguments, Lynk Labs fur-
ther argues that, under what it views as the proper con-
structions, claim 7 (and thus dependent claims 8–13) would
not have been obvious. We address each argument in turn.
appeal those determinations. Samsung’s seventh ground
relied on Martin but resulted in a patentability determina-
tion favorable to Lynk Labs.
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 6
I
A
An IPR petitioner may challenge a patent “only on a
ground that could be raised under [35 U.S.C. §§] 102 or 103
and only on the basis of prior art consisting of patents or
printed publications.” 35 U.S.C. § 311(b) (emphasis
added).
Lynk Labs agrees that Martin is a “printed publica-
tion.”4 Indeed, it is. “The touchstone of whether a refer-
ence constitutes a printed publication is public
accessibility.” Weber, Inc. v. Provisur Techs., Inc., 92 F.4th
1059, 1067 (Fed. Cir. 2024); see also In re Klopfenstein,
380 F.3d 1345, 1348 (Fed. Cir. 2004) (observing that, “for
something to be considered a ‘printed publication[,]’” “the
key inquiry is whether or not a reference has been made
‘publicly accessible’”). And there is no dispute that Martin,
a published patent application, is publicly accessible.5
Although Lynk Labs agrees that Martin is a “printed
publication,” it argues that Martin is not a “prior art . . .
printed publication[]” as to the ’400 patent. See Appellant’s
Br. 57 (quoting § 311(b) (emphasis in original)). In sup-
port, Lynk Labs points to cases—contemplating books,
4 See Oral Arg. at 2:00–30, No. 23-2346 (“A pub-
lished patent application is a printed publication as of some
date.”), https://oralarguments.cafc.uscourts.gov/default.
aspx?fl=23-2346_10102024.mp3.
5 There can be little doubt that published patent ap-
plications are publicly accessible within the meaning of our
precedent. See, e.g., 37 C.F.R. § 1.11(a) (providing that
“[t]he specification, drawings, and all papers relating to the
file of” a “published application . . . are open to inspection
by the public”); see also Manual of Patent Examining Pro-
cedure § 1128 (addressing electronic availability of pub-
lished patent applications).
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 7
articles, or the like—that analyzed prior-art status under
§ 102(a) or (b). Section 102(a) bars patentability if the
claimed invention was “described in a printed publica-
tion . . . before the invention thereof by the applicant for pa-
tent,” whereas § 102(b) does so if the claimed invention was
“described in a printed publication . . . more than one year
prior to the date of the application for patent in the United
States.” § 102(a), (b) (emphasis added).6 And the cases
Lynk Labs cites stand for the proposition that, to be a prior
art printed publication as to a given patent under one of
these subsections, the reference at issue must have been
publicly accessible before the date indicated in those sub-
sections (here, for the ’400 patent, that relevant date is its
priority date). See, e.g., Voter Verified, Inc. v. Premier Elec-
tion Sols., Inc., 698 F.3d 1374, 1380 (Fed. Cir. 2012) (“When
considering whether a given reference qualifies as a prior
art printed publication [under § 102(b)], the key inquiry is
whether the reference was made sufficiently accessible to
the public interested in the art before the critical date.”
(cleaned up)); see also VidStream LLC v. Twitter, Inc.,
981 F.3d 1060, 1066 (Fed. Cir. 2020) (evaluating a refer-
ence’s status as a prior art printed publication under
§ 102(a) and concluding that “[t]he evidence well supports
the Board’s finding that [the reference] was published and
publicly accessible before the [challenged patent’s] . . . pri-
ority date”). So, the argument goes: because Martin be-
came publicly accessible only as of its October 21, 2004
publication date, and because the ’400 patent’s priority
date is February 25, 2004, Martin cannot be a “prior art . . .
printed publication[]” under § 311(b) as to the ’400 patent.
6 The parties do not dispute that pre-Leahy Smith
America Invents Act (“AIA”) § 102 applies here. See AIA,
Pub. L. No. 112-29, sec. 3(n), 125 Stat. 284, 293 (2011). Our
references to § 102 therefore refer to pre-AIA § 102.
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 8
The main problem with Lynk Labs’ argument is that,
unlike § 102(a) or (b), and unlike books, articles, or other
types of printed publications, Congress created—in
§ 102(e)(1)—a special rule for published patent applica-
tions. Specifically, § 102(e) states (in relevant part):
A person shall be entitled to a patent unless—
. . .
(e) the invention was described in—
(1) an application for patent, published un-
der [35 U.S.C. §] 122(b), by another filed in
the United States before the invention by
the applicant for patent . . . or
(2) a patent granted on an application for
patent by another filed in the United States
before the invention by the applicant for
patent . . . .
§ 102(e) (emphasis added). Thus, a U.S.-filed patent appli-
cation “published under [§] 122(b)” serves as prior art to a
claimed invention if the application was “filed . . . before
the [claimed] invention.” Id. § 102(e)(1) (emphasis added).7
In other words, under § 102(e)(1), even if a patent applica-
tion was published after a claimed invention, it may serve
as prior art to the invention if the application was filed be-
fore the invention.
Returning now to the issue at hand, we note that Mar-
tin—a published patent application—is a “printed
7 The parties do not dispute that Martin was pub-
lished “under [§] 122(b)” and was “filed in the United
States.” See § 102(e)(1). General statements in this opin-
ion concerning published patent applications assume that
these (or any other applicable) publication and filing re-
quirements of § 102(e)(1) are met.
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 9
publication,” as both sides agree. And § 311(b) permits IPR
unpatentability challenges “on the basis of prior art con-
sisting of patents or printed publications.” Under
§ 102(e)(1), published patent applications, like Martin, are
deemed prior art as of their filing date. Therefore, Mar-
tin—having been filed before the ’400 patent’s priority
date—is a prior art printed publication as to the ’400 pa-
tent. Stated generally: because a published patent appli-
cation is a “printed publication,” § 102(e)(1) treats this type
of printed publication as prior art as of a time before it be-
came publicly accessible—i.e., as of its filing date.
Lynk Labs finds it anomalous that a printed publica-
tion could be deemed a “prior art” printed publication even
before it became a printed publication (i.e., became publicly
accessible). But it does not dispute that a patent can be
deemed a “prior art” patent even before it became a patent.
Specifically, under the neighboring, similarly worded pro-
vision of § 102(e)(2), “a patent granted on an application for
patent by another filed in the United States before the in-
vention by the applicant for patent” serves as prior art to
the claimed invention. Lynk Labs does not dispute that,
due to § 102(e)(2), an IPR challenge under § 311(b) can in-
clude as a “prior art . . . patent[]” a patent that did not be-
come a patent until after the challenged patent’s priority
date. See Reply Br. 27; Oral Arg. at 11:23–41; see also Bec-
ton, Dickinson & Co. v. Baxter Corp. Englewood, 998 F.3d
1337, 1345 & n.7 (Fed. Cir. 2021). Given § 102(e)(1) and
(e)(2), Lynk Labs has no satisfactory explanation as to why
patent applications that are later published (and thus be-
come printed publications) should have a prior-art status
different from patent applications that later become pa-
tents.
Lynk Labs further argues that, because § 102 refers to
“printed publication[s]” in subsections (a) and (b) and “ap-
plication[s] for patent, published under [§] 122(b)” in sub-
section (e)(1), those two terms must mean completely
distinct things, such that the former cannot include the
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 10
latter. See Appellant’s Br. 60–61.8 Even setting aside the
tension between this argument and Lynk Labs’ concession
that Martin is a printed publication, this argument is un-
persuasive. It simply does not follow that two different
terms must mean completely distinct things. One could be
a specific instance of a general term. For example, “lion”
and “mammal” are different terms with different mean-
ings, but those meanings are not completely distinct; a lion
is just a specific type of mammal. Similarly, here, we think
it plain enough that an “application for patent, published
under [§] 122(b)” is just a specific type of “printed publica-
tion.” Merely observing that § 102 uses both terms—
“printed publication” and “application for patent, published
under [§] 122(b)”—does not overcome this natural reading.
Nor does this observation alone show that, in the context
of § 311(b), “printed publications” excludes from its scope
published patent applications and the specific prior-art
rule of § 102(e)(1).
In sum, a published patent application is, by its literal
terms, a “printed publication.” So, when § 311(b) permits
IPR challenges based upon “prior art . . . printed publica-
tions,” it includes within its literal scope challenges based
upon a published patent application. And, by virtue of
§ 102(e)(1), a published patent application—this specific
type of “printed publication”—is deemed prior art as of its
filing date. Therefore, the plain language of §§ 311(b) and
102(e)(1) permits IPR challenges based upon published pa-
tent applications, and such published patent applications
can be deemed prior art in IPRs as of their filing date.
8 In advancing this argument, Lynk Labs tends to
refer to the § 102(e)(1) language only as “application[s] for
patent,” see Appellant’s Br. 60–61—omitting that the lan-
guage further includes: “application[s] for patent, pub-
lished under [§] 122(b).” § 102(e)(1) (emphasis added).
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 11
B
Lynk Labs’ contrary position relies mostly on the his-
torical context behind § 311(b). Upon analyzing that con-
text, however, we conclude that it only adds further
support for the plain-language interpretation set forth
above. We first describe the history of relevant legislation
before analyzing both it and Lynk Labs’ arguments.
1
The phrase “patents or printed publications” first ap-
peared as a limitation on the types of references that could
be used in post-grant proceedings in 1980, with the intro-
duction of reexamination proceedings.
Well before 1980, however, the term “printed publica-
tion” appeared in § 102. Again, § 102(a) barred patentabil-
ity if the claimed invention was “described in a printed
publication . . . before the invention thereof by the appli-
cant for patent.” § 102(a) (1952). And § 102(b) did the
same if the claimed invention was “described in a printed
publication . . . more than one year prior to the date of the
application for patent in the United States.” § 102(b)
(1952).
In 1980, Congress created procedures for reexamina-
tion of issued patents. An Act to Amend the Patent and
Trademark Laws, Pub. L. No. 96-517, 94 Stat. 3015 (1980)
(“1980 Patent Act”). This statute set forth the require-
ments for ex parte reexaminations, stating that “[a]ny per-
son at any time may file a request for reexamination by the
[U.S. Patent and Trademark Office (“PTO”)] of any claim of
a patent on the basis of any prior art cited under the provi-
sions of section 301 of this title.” 1980 Patent Act, § 302,
94 Stat. at 3015 (emphasis added). Section 301, in turn,
identified “prior art consisting of patents or printed publi-
cations”—the same phrase that § 311(b) uses today. Com-
pare id. § 301, 94 Stat. at 3015, with AIA, sec. 6(a), § 311,
125 Stat. at 299. The stated intent for this limitation was
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 12
to allow the PTO to evaluate “patents and printed materi-
als, matters which are normally handled by patent exam-
iners,” while excluding “[c]hallenges to validity on other
grounds (e.g., public uses or sales)[, which] would remain
the province of the courts.” S.R. No. 96-617, at 2 (1980); see
also Qualcomm Inc. v. Apple Inc., 24 F.4th 1367, 1376
(Fed. Cir. 2022) (“The congressional purpose in restricting
reexamination to printed documents, 35 U.S.C. § 301, was
to provide a cheaper and less time-consuming alternative
to challenge patent validity on certain issues.” (emphasis
added) (cleaned up)). For example, prior art in the form of
sales and public use often requires substantial discovery or
fact finding into how the alleged prior-art product at issue
operates, how it was formed, what it comprises, and the
circumstances surrounding the alleged sale or use. Patents
and printed publications, on the other hand, generally do
not require such additional discovery or fact finding.
In 1999, Congress added three relevant provisions in
the American Inventors Protection Act (“AIPA”). Pub. L.
No. 106-113, app. I, tit. IV, 113 Stat. 1501, 1501A-552
(1999). First, it created the inter partes reexamination pro-
cedure, which, like the ex parte reexamination created in
1980, provided for challenges “on the basis of any prior art
cited under the provisions of section 301”—i.e., prior art
consisting of “patents and printed publications.” AIPA, sec.
4604(a), § 311(a), 113 Stat. at 1501A-567. Second, Con-
gress—for the first time—provided for the publication of
patent applications. Subject to certain exceptions, “each
application for a patent shall be published . . . promptly af-
ter the expiration of a period of 18 months from the earliest
filing date for which a benefit is sought under this title.”
AIPA, sec. 4502(a), § 122(b)(1)(A), 113 Stat. at 1501A-561.
Before this provision’s enactment in 1999, patent applica-
tions were not published. And third, Congress—in a provi-
sion titled “Prior Art Effect of Published Applications”—
established, in § 102(e)(1), a rule for when this specific form
of reference would be deemed prior art: a published patent
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 13
application would be deemed prior art if it was “filed . . .
before the invention by the applicant for patent.” See
AIPA, sec. 4505, § 102(e)(1), 113 Stat. at 1501A-565.
Finally, in 2011, Congress passed the AIA with various
provisions going into effect in 2012 and 2013. One such
provision was the creation of the IPR, which replaced inter
partes reexamination. See AIA, sec. 6(a), § 311, 125 Stat.
at 299. In creating this new proceeding, Congress again
used the same phrase “consisting of patents and printed
publications” as was used in the 1980 Patent Act and left
unchanged in the AIPA. Id. § 311(b), 125 Stat. at 299.
2
Lynk Labs argues that, when Congress established
published patent applications as prior art in § 102(e)(1)
and—in the same enactment—permitted inter partes reex-
aminations (and later, IPRs) upon only “printed publica-
tions,” Congress was transplanting the legal term “printed
publication” from case law along with that case law’s “old
soil.” See Appellant’s Br. 61, 64 (citing Taggart v. Lo-
renzen, 587 U.S. 554, 560 (2019) (“When a statutory term
is obviously transplanted from another legal source, it
brings the old soil with it.” (cleaned up))). Lynk Labs fur-
ther argues that this “old soil” means that patent applica-
tions can never be “printed publications”—full stop. It also
suggests, more modestly, that these cases mean that a ref-
erence can be a prior art “printed publication” only if it was
publicly accessible before the relevant date associated with
the challenged patent. With that understanding, Lynk
Labs concludes that “printed publications” as used in
§ 311(b) excludes from its scope published patent applica-
tions treated as prior art under § 102(e)(1), given that the
latter do not have to be publicly accessible beforehand to be
considered prior art. As we explain below, although we
agree that “printed publication” carried with it some “old
soil,” we disagree with Lynk Labs’ ultimate conclusion.
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 14
At the outset, we note that much of Lynk Labs’ “old
soil” case law predates when patent applications were pub-
lished. See AIPA, sec. 4502(a), § 122(b)(1)(A), 113 Stat.
at 1501A-561. Unsurprisingly, then, these cases do not ad-
dress published patent applications or the special prior-art
rule that Congress prescribed in § 102(e)(1). Instead, they
address either unpublished patent applications or printed
publications such as books, articles, or the like under
§ 102(a) or (b). These cases must therefore be understood
in context when ascertaining the scope of “printed publica-
tions” in § 311(b) and whether that term excludes pub-
lished patent applications treated as prior art under
§ 102(e)(1).
With this context in mind, we deem unavailing Lynk
Labs’ reliance on older cases to show that patent applica-
tions can never be “printed publications.” For example,
Lynk Labs quotes Brown v. Guild, 90 U.S. 181 (1874), as
saying that a “mere application for patent” is not a “printed
publication.” Appellant’s Br. 60 (quoting Brown, 90 U.S.
at 211). It also cites other cases to similar effect. See id. at
60–61 (citing Interurban Ry. & Terminal Co. v. Westing-
house Elec. & Mfg. Co., 186 F. 166, 168 (6th Cir. 1911) (ob-
serving that “[a]bandoned applications for patents” cannot
“be classed among printed publications, for they . . . are not
published by the [PTO]” (cleaned up))). But, as even some
of this cited language explains, the reason “mere” patent
applications were not deemed printed publications is that,
at the time, they were not published at all. These cases
therefore do not speak to the question here: whether, once
patent applications started being published, they could be
considered prior art “printed publications” (with the special
prior-art rule of § 102(e)(1) applied).
Lynk Labs separately argues—and we agree—that, be-
cause case law interpreted “printed publication” to mean a
reference that is publicly accessible, Congress carried forth
this “old soil” interpretation of “printed publications” when
it defined the scope of challenges available for
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 15
reexaminations and IPRs. See, e.g., In re Bayer, 568 F.2d
1357, 1359 (CCPA 1978) (“[T]he dispositive issue is
whether [the reference], by virtue of its accessibility . . . , is
a ‘publication’ within the meaning of [§ 102(b)].”); see also
In re Lister, 583 F.3d 1307, 1311 (Fed. Cir. 2009) (“In order
to qualify as a printed publication within the meaning of
§ 102, a reference ‘must have been sufficiently accessible to
the public interested in the art.’” (quoting In re Cronyn,
890 F.2d 1158, 1160 (Fed. Cir. 1989))). The problem for
Lynk Labs, however, is that this definition of “printed pub-
lications” would include published patent applications,
since the latter are publicly accessible. So, while we agree
with Lynk Labs that Congress carried forth the “old soil”
requirement of public accessibility for the term “printed
publications,” this observation only confirms that pub-
lished patent applications qualify as “printed publica-
tions.”
Lynk Labs further maintains that case law concerning
§ 102(a) or (b) “printed publication[s]” grafted upon that
term not only a requirement that they be publicly accessi-
ble, but also when they must have been publicly accessible
in order to be treated as prior art. We disagree. The
“when” issue in these cases was controlled by other, tem-
poral language in these subsections—in § 102(a), “de-
scribed in a printed publication . . . before the invention
thereof by the applicant for patent,” § 102(a) (emphasis
added); and in § 102(b), “described in a printed publica-
tion . . . more than one year prior to the date of the applica-
tion for patent in the United States,” § 102(b) (emphasis
added).
For example, our cases have concluded that, for some-
thing to have been “described in a printed publication” so
as to constitute a patentability bar under § 102(a) or (b),
the reference must have been publicly accessible before the
dates specified in those subsections. See In re Hall,
781 F.2d 897, 899 (Fed. Cir. 1986) (“The proponent of the
[§ 102(b)] bar must show that prior to the critical date the
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 16
reference was sufficiently accessible, at least to the public
interested in the art . . . .” (emphasis added)); see also Vid-
Stream, 981 F.3d at 1066 (“The evidence well supports the
Board’s finding [under § 102(a)] that [the reference] was
published and publicly accessible before the [challenged pa-
tent’s] . . . priority date.” (emphasis added)); Samsung El-
ecs. Co. v. Infobridge Pte. Ltd., 929 F.3d 1363, 1370
(Fed. Cir. 2019) (reasoning that, “even if” a reference had
met the public accessibility requirement, because of the
timing, “it would not establish that [the reference] could
serve as prior art here”); Acceleration Bay, LLC v. Ac-
tivision Blizzard Inc., 908 F.3d 765, 772 (Fed. Cir. 2018)
(explaining that public accessibility is the “touchstone in
determining whether a reference constitutes a ‘printed
publication,’” and then noting the Board’s finding that the
reference “was not publicly accessible before the critical
date” (emphasis added) (cleaned up)); Voter Verified,
698 F.3d at 1380 (“When considering whether a given ref-
erence qualifies as a prior art printed publication [under
§ 102(b)], the key inquiry is whether the reference was
made sufficiently accessible to the public interested in the
art before the critical date.” (emphasis added) (cleaned up)).
Again, however, this “when” issue for prior-art status
is dictated by the above-quoted temporal language from
§ 102—not the meaning of “printed publication” itself,
which is otherwise temporally agnostic. Put differently:
whether, and how, something that qualifies as a “printed
publication” is considered prior art depends on other stat-
utory language.
That the term “printed publication” does not, itself,
carry with it any temporal prior-art-status requirement is
also clear when parsing § 102’s text. This is for at least two
reasons. First, if “printed publication” inherently has its
own temporal requirement, and if the term means the
same thing throughout § 102, one difficulty immediately
appears: § 102(a) and (b) have different temporal require-
ments (“before the invention” vs. “more than one year prior
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 17
to the date of the [patent] application”). Therefore, the
term “printed publication” cannot both (1) have its own,
specific baked-in temporal requirement and (2) mean the
same thing throughout § 102. The “normal presumption”
is that “when Congress uses a term in multiple places
within a single statute, the term bears a consistent mean-
ing throughout.” Azar v. Allina Health Servs., 587 U.S.
566, 576 (2019). Thus, it is far more likely that the term
“printed publication” itself does not have its own, baked-in
temporal requirement, and that instead, whatever tem-
poral requirement exists is drawn from the other language
in § 102(a) or (b) (which is the most natural reading any-
way). Second, and relatedly, if “printed publication” inher-
ently has its own temporal requirement, § 102(a) and (b)
would be confusing, redundant, or both. For example, sub-
stituting for “printed publication” the words “a reference
publicly accessible before the invention” would yield the
following in § 102(a):
A person shall be entitled to a patent unless—
. . .
(a) the invention was . . . described in [a reference
publicly accessible before the invention] . . . be-
fore the invention . . . .
Our case law provides no reason, and we see none, why
“printed publication”—an otherwise temporally agnostic
term—should be interpreted to introduce such textual dif-
ficulties.9
9 We appreciate that some of our cases include lan-
guage suggesting that the definition of a “printed publica-
tion” itself includes a temporal requirement concerning
public accessibility. For example, in Constant v. Advanced
Micro-Devices, Inc., 848 F.2d 1560 (Fed. Cir. 1988), we said:
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 18
Accordingly, case law concerning “printed publica-
tions” in the § 102(a) or (b) context—addressing the term
in view of other language in those provisions—did not pre-
vent Congress from setting up a different timing frame-
work for a printed publication in § 102(e)(1). Unlike
§ 102(a) or (b), § 102(e)(1) bars patentability if the claimed
invention was “described in . . . an application for patent,
published under [§] 122(b)” that was “filed in the United
States before the invention by the applicant for patent.”
§ 102(e)(1) (emphasis added). By its explicit terms, it bars
patentability based on a published patent application if
that application was filed before the invention. This lan-
guage does not mean that a published patent application is
not a “printed publication” within the meaning of the “old
soil”; it is indeed a “printed publication,” given that it is
publicly accessible. This language simply means that Con-
gress chose to afford published patent applications a prior-
“The statutory phrase ‘printed publication’ has been inter-
preted to mean that before the critical date the reference
must have been sufficiently accessible to the public inter-
ested in the art . . . .” Id. at 1568. Yet that same sentence
continued: “[D]issemination and public accessibility are
the keys to the legal determination whether a prior art ref-
erence was ‘published,’” id.—thus conveying that whether
something is a “printed publication” does not, itself, carry
with it any temporal requirement. Moreover, Constant
cited Hall for this proposition, and Hall distinguished be-
tween the question of public accessibility and when, for
§ 102(b) purposes, the reference was publicly accessible.
See Hall, 781 F.2d at 899 (observing that “public accessi-
bility” is “the touchstone in determining whether a refer-
ence constitutes a ‘printed publication’ bar under
[§ 102(b)]” and noting that “[t]he proponent of the [§ 102(b)]
bar must show that prior to the critical date the reference
was sufficiently accessible, at least to the public interested
in the art” (emphasis added)).
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 19
art effect different from the effect given to printed publica-
tions in § 102(a) and (b). See AIPA, sec. 4505, 113 Stat.
at 1501A-565 (“Prior Art Effect of Published Applica-
tions”). And case law confronting different statutory pro-
visions having materially different language does not
permit us to ignore Congress’s choice in that regard.
Having concluded that the plain language of § 102(e)(1)
supports our interpretation of § 311(b) and that there is no
persuasive support in § 311(b)’s historical context for Lynk
Labs’ interpretation, we note finally that treating pub-
lished patent applications (with the special prior-art rule
of § 102(e)(1) applied) as available prior art under § 311(b)
is fully consistent with the “congressional purpose in re-
stricting reexamination”—and later, IPRs—to printed doc-
uments. See Qualcomm, 24 F.4th at 1376 (cleaned up).
Again, that purpose was “to provide a cheaper and less
time-consuming alternative to challenge patent validity on
certain issues.” Id. (cleaned up). With this purpose in
mind, Congress discussed a broad division between prior
art that may be asserted in these post-grant proceedings
and prior art that may not: printed documents versus sale
and public use, respectively. See S.R. No. 96-617, at 2. The
former are the types of references that “are normally han-
dled by patent examiners,” id., while the latter often re-
quire substantial discovery or factfinding as to, among
other things, the circumstances surrounding the alleged
sale or use. Published patent applications clearly fall into
the former category.10 In fact, as official PTO publications,
10 Indeed, it is undisputed that § 102(e)(1) prior art
(i.e., published patent applications) may be used as prior
art in a district court proceeding. See Appellant’s Br. 60
(“[Section] 102(e)(1) [prior art] may be asserted in (for ex-
ample) infringement litigation.”). Following Lynk Labs’ ar-
gument to its conclusion would place an artificial
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 20
published patent applications would create even less need
for discovery or factfinding than some other alleged printed
publications. Cf. Klopfenstein, 380 F.3d at 1347 (address-
ing dispute over public accessibility of a printed slide
presentation); Hall, 781 F.2d at 897 (same for doctoral the-
sis). Treating published patent applications (with the spe-
cial prior-art rule of § 102(e)(1) applied) as available prior
art under § 311(b) is thus fully consistent with Congress’s
purpose in limiting the types of patentability challenges in
IPRs.
Accordingly, for the foregoing reasons, we conclude
that §§ 311(b) and 102(e)(1) permit IPR challenges based
upon published patent applications, and such published
patent applications can be deemed prior art in IPRs as of
their filing date. Therefore, Martin was properly deemed
prior art to the ’400 patent in this IPR.
II
Having concluded that Martin may be used as the basis
of Samsung’s IPR, we turn to the merits of the Board’s de-
cision. Lynk Labs argues that the Board misconstrued the
plain and ordinary meaning of two limitations in claim 7 of
the ’400 patent: (1) “an LED circuit comprising a plurality
of LEDs connected in series”; and (2) “a forward voltage of
the LEDs of the LED circuit array matches the rectified
input AC voltage output of the driver.” Lynk Labs also ar-
gues that the Board made factual errors in its evaluations
of the prior art. We address Lynk Labs’ arguments as to
constraint on the types of prior art that may be asserted in
an IPR versus that which may be asserted in a district
court. We see no reason why Congress would have created
such a distinction, particularly for published patent appli-
cations which, as stated above, do not fall into the category
of prior art that generally requires extensive discovery or
fact finding.
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 21
each limitation’s construction, and the associated factual
disputes, in turn.
A
With respect to the first limitation, Lynk Labs argues
that the term “a plurality of LEDs connected in series”
means “a plurality of individual LEDs connected in series”
and not “a plurality of LED circuits connected in series.”
Under the plain and ordinary meaning of the term, we con-
clude that “a plurality of LEDs connected in series” may
include either a plurality of individual LEDs or a plurality
of LED circuits connected in series because both include a
“plurality of LEDs.” We therefore agree with the Board’s
construction and the Board’s conclusion that Nerone
teaches this claim limitation.
An electrical circuit may connect electrical components
(like LEDs) either in parallel or in series. Electrical com-
ponents connected end-to-end are connected in series, and
the electrical current flows through the LEDs. In diagram
B below, the four LEDs covered by the group encompassed
by IA are connected in series. Electrical components are
“connected in parallel when they connect to the same point
(or node),” and the current flow is divided between them.
Appellee’s Br. 3. In diagram A below, the three LEDs level
with “I 1 ” are connected in parallel, and the black, purple,
and gold lines show current flow divided between them. In
simpler terms, diagram B shows individual LEDs con-
nected in series, whereas diagram A shows groups of LEDs
connected in series.
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 22
Appellant’s Br. 17 (citing J.A. 6325).
The claim language recites “a plurality of LEDs con-
nected in series.” ’400 patent claim 7. This term is found
only in claims 1 and 7; nowhere is this exact phrase used
or defined in the specification. The specification includes
examples of both individual and groups of LEDs connected
in series. See, e.g., id. at Fig. 14 (showing a plurality of
parallel-connected LEDs, with each group of LEDs con-
nected in series); see also id. at Figs. 21, 24; id. at 9:63–66.
The disclosures in the specification lead us to conclude that
the plain and ordinary meaning of “a plurality of LEDs con-
nected in series” may include individual LEDs connected
in series or groups of LEDs connected in series because
both include a “plurality of LEDs” connected in series. See
Malvern Panalytical Inc. v. TA Instruments-Waters LLC,
85 F.4th 1365, 1373–74 (Fed. Cir. 2023) (concluding that
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 23
the absence of limiting disclosures in the specification sup-
ported a broad claim construction).
We agree with the Board that Lynk Labs’ construction
limiting the term to just “individual LEDs” connected in
series is “largely based on rewriting this limitation.” Final
Written Decision, at 22. And while other claims may be
more specific, such that they only include one circuit con-
figuration, that is not determinative of how we construe
broader claims. See ’400 patent claim 14 (claiming “a plu-
rality of LED circuits connected in parallel”). For the rea-
sons above, we agree with the Board’s construction of “a
plurality of LEDs connected in series.”
Lynk Labs’ arguments as to whether the prior art dis-
closes “a plurality of LEDs connected in series” is premised
on the Board’s allegedly erroneous construction of this
term. Because we conclude that the Board did not err in
construing the term, no dispute remains as to whether the
prior art discloses this limitation. Indeed, it is undisputed
that the prior art, Nerone, teaches a series of circuits,
where the LEDs are connected in parallel within each cir-
cuit. See Appellant’s Br. 18 (“Diagram A illustrates that
while groups of LEDs in Nerone may be connected in series
with other groups of LEDs, there are no LEDs that are con-
nected in series with other LEDs.” (emphases omitted)); see
also Final Written Decision, at 22 (“Patent Owner admits
that ‘Nerone confirms that each of the four groups 410 is in
series.’” (quoting Lynk Labs’ Patent Owner Response at
26)). Therefore, we conclude that substantial evidence sup-
ports the Board’s finding that Nerone discloses this claim
limitation.
B
With respect to the second disputed limitation, Lynk
Labs argues that the Board misconstrued claim 7’s limita-
tion that recites “a forward voltage of the LEDs of the LED
circuit array matches the rectified input AC voltage output
of the driver.” Specifically, Lynk Labs argues that the
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 24
Board erred by (1) misconstruing “matches” and (2) read-
ing “rectified” out of the claim. We disagree with both ar-
guments.
1
Claim 7 recites “a forward voltage of the LEDs of the
LED circuit array matches the rectified input AC voltage
output of the driver.” ’400 patent claim 7 (emphasis
added). The parties did not propose a claim construction
for this term before the Board; instead, each party agreed
that the terms in the challenged claims should be given
their plain and ordinary meaning. See Final Written Deci-
sion, at 9–10. Lynk Labs argues that the plain and ordi-
nary meaning of “matches” means “equivalent.”
Appellant’s Br. 38–39. Samsung argues, and the Board
agreed, that the limitation, in view of the specification, “en-
compasses ‘the rectified input AC voltage output of the
driver’ that is less than ‘a forward voltage of the LEDs of
the LED circuit.’” Appellee’s Br. 40 (quoting Final Written
Decision, at 36) (emphasis altered from original). Based on
the intrinsic record, we agree with Samsung and the Board.
The parties identify three parts of the specification that
bear on the scope of this limitation. First, in the “Back-
ground of the Invention” section, the patent explains that
prior-art reference “Allen discloses that for the forward
voltage to be ‘matched,’ in each series block, the peak input
voltage must be less than or equal to the sum of the maxi-
mum forward voltages for each series block in order to pre-
vent over-driving.” ’400 patent col. 2 ll. 31–35 (emphasis
added). Second, in the “Summary of the Invention” section,
the patent states: “[A]nother form of the invention is an
LED circuit comprising opposing parallel series strings of
LEDs connected together and driven direct with a high fre-
quency AC voltage equal to or less than to total series volt-
age drop of the opposing parallel series strings of LEDs
within the LED circuit.” Id. col. 9 ll. 48–53. Third, in the
“Detailed Description of Preferred Embodiments” section,
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 25
the specification provides a single example of a circuit con-
figuration that describes a specific voltage source, LEDs
with a particular forward voltage, diodes with a specific
voltage, and an approximate number of LEDs. Id. col. 17
ll. 1–7. Lynk Labs relies on this example as mathemati-
cally demonstrating equivalence between the “forward
voltage of the LEDs of the LED circuit array” and “the rec-
tified input AC voltage output of the driver.” See Appel-
lant’s Br. 42–43.
Lynk Labs argues that the first quote does not define
“match” but instead is an embodiment from prior-art refer-
ence Allen. But even “prior art cited in a patent . . . consti-
tutes intrinsic evidence.” V-Formation, Inc. v. Benetton
Grp. SpA, 401 F.3d 1307, 1311 (Fed. Cir. 2005) (citation
omitted). Therefore, this first quote is relevant intrinsic
evidence of the meaning of “matches” in the art.
Lynk Labs argues that the second quote does not refer
to or define “matches.” But this argument is inconsistent
with Lynk Labs’ prior reliance on this passage for constru-
ing “matches”:
[T]he [’400 patent,] column 9, lines 48 through 52,
that passage describes LEDs connected together
and driven direct with a high frequency AC voltage
equal to or less than the total series voltage drop of
the opposing parallel series strings of LEDs. So
here we have support for the voltage drop being
equal to. It’s described here as equal to or less
than, but there is support, of course, for equal to.
J.A. 6531 ll. 20–25 (quoting IPR oral hearing) (emphasis
added). Additionally, the definition of “matched” from Al-
len is substantively the same as the disclosed embodiment
in the “Summary of the Invention.” Compare ’400 patent
col. 2 ll. 31–35 (“for the forward voltage to be ‘matched,’ in
each series block, the peak input voltage must be less than
or equal to the sum of the maximum forward voltages” (em-
phasis added)), with id. col 9 ll. 48–52 (“a high frequency
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 26
AC voltage equal to or less than to total series voltage drop”
(emphasis added)). Therefore, this second quote is also rel-
evant intrinsic evidence of the meaning of “matches” in the
art.
With respect to the third quote, Lynk Labs argues that
this example mathematically demonstrates equivalence.
See Appellant’s Br. 42–43 (calculating the voltage output of
the driver after the bridge rectifier at 114 V and the total
forward voltage drop as 114 V). Samsung does not dispute
the example provided in the specification results in a for-
ward voltage of the LEDs of the LED circuit array that
equals the rectified input AC voltage output of the driver.
We also view this passage as relevant intrinsic evidence.
These passages, taken together, support a plain and or-
dinary meaning in light of the specification that includes
both equivalence and a “rectified input AC voltage output
of the driver that is less than a forward voltage of the LEDs
of the LED circuit.” Final Written Decision, at 36 (cleaned
up) (emphasis added). Not once but twice, the specification
explains the relationship between the rectified input AC
voltage output and the forward voltage in the same manner
as including “less than or equal to.” See Grace Instruments
Indus., LLC v. Chandler Instruments Co., 57 F.4th 1001,
1010 (Fed. Cir. 2023) (construing term in line with the im-
plications from the specification). And a single example
that falls within the “equal to” part of the relationship does
not contradict the meaning of “matches” in other parts of
the specification. Thus, we conclude that the Board did not
err in its construction of “matches.”11
11 Lynk Labs argues that Samsung’s failure to set
forth a numerical value for the “matches” limitation is “an
error of law.” Appellant’s Br. 53–57. But Lynk Labs sets
forth no law that requires a numerical value under these
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 27
2
Lynk Labs further argues that the Board’s construction
of “a forward voltage of the LEDs of the LED circuit array
matches the rectified input AC voltage output of the driver”
reads out the word “rectified.” We disagree.
While framed as a claim construction dispute, Lynk
Labs’ argument is based on what Martin does and does not
disclose. See Appellant’s Br. 48 (“The Board went on to
hold that Martin’s teaching of an unrectified AC voltage
output that is less than the forward voltage of the LEDs
meets [this] limitation . . . . In so doing, the Board erred by
effectively construing [this] limitation [incorrectly] . . . .”
(emphasis in original)); id. at 50 (“Martin only dis-
closes . . .”); id. (“Martin discloses . . .”); id. (“Martin does
not teach or suggest . . .”); id. (“Martin as applied to Nerone
does not meet [this] limitation.”); id. (“Martin discloses se-
lecting . . .”). This is not a dispute about claim construction
but a dispute as to whether Martin discloses “the rectified
input AC voltage output of the driver.”
An unrectified voltage has an alternating, wave-like
voltage, like the one in the image below.
circumstances. Nor are we aware of any. We therefore dis-
agree that this was an error.
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 28
Appellant’s Br. 51 (citing J.A. 175–76). A rectified voltage
has a continuous voltage, depicted by the red line labelled
“rectified voltage output” in the image below.
Appellant’s Br. 52 (citing J.A. 175–76). Lynk Labs ex-
plains that an unrectified voltage results in light being
emitted when voltage is positive but not when voltage is
negative, while a rectified voltage delivers a constant emis-
sion of light. Appellant’s Br. 51–52.
The Board relied on Samsung’s expert testimony that
“a person of ordinary skill in the art would have taken into
consideration the number of LEDs and the total voltage
drop of the LED circuit when designing and implementing”
a circuit. J.A. 244; Final Written Decision, at 36–37. “[A]
person of ordinary skill in the art would have used these
factors to apply the teachings of Martin to configure
Nerone’s circuitry so that ‘the forward voltage of the series-
connected LEDs [] approximately match[es] the rectified
AC voltage output of the . . . LED driver circuit.” Final
Written Decision, at 37. Further, Samsung argued that
“matching the input voltage to the forward voltage of the
LEDs had become a matter of routine optimization.” Id.
(citing Samsung’s Petition, at 19). Samsung supported this
assertion with expert testimony, which was corroborated
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 29
by references Cross12 and Martin. Id. In other words, the
Board was persuaded by Samsung’s testimony that the
knowledge of a person of ordinary skill in the art included
the routine optimization of “matching” a “rectified input
AC voltage output of the driver” to the “forward voltage of
the LEDs of the LED circuit array.” Final Written Deci-
sion, at 36–38.
“A person of ordinary skill in the art is also a person of
ordinary creativity . . . .” KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 421 (2007). And Samsung’s argument was
based on the knowledge of a person of ordinary skill in the
art, as explained above. Therefore, even if Lynk Labs is
correct that Martin does not explicitly disclose determining
the forward voltage of the LEDs based on the peak voltage
of a rectified voltage, that is of no consequence based on the
facts and argument before us. Lynk Labs apparently con-
ceded that “Figure 5 of Martin discloses LEDs driven by a
rectified AC voltage.” Final Written Decision, at 32 (em-
phasis added). Lynk Labs also did not dispute that Nerone
discloses configurations where a rectified AC voltage is pro-
vided to LEDs. Id. at 36–39. And Lynk Labs did not dis-
pute that a person of ordinary skill in the art would have
considered several factors “when designing Nerone’s cir-
cuitry to satisfy the ‘matching’ requirement of [this] limi-
tation.” Id. at 36; see also id. at 36–38. Therefore, like the
Board, we are persuaded that “the combined teachings of
Nerone and Martin teach or suggest [this] limitation,” id.
at 38, particularly in light of the knowledge of a person of
ordinary skill in the art.
For these reasons, we affirm the Board’s determination
that claim 7 would have been obvious in view of Nerone and
Martin. Final Written Decision, at 68. And because
claims 8–13 depend from claim 7, and Lynk Labs makes no
12 U.S. Patent Application Pub. No. 2003/0102810
(“Cross”), J.A. 4162–74.
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LYNK LABS , INC. v. SAMSUNG ELECTRONICS CO., LTD. 30
separate argument for these dependent claims, we also af-
firm the Board’s determination that claims 8–13 would
have been obvious.
C ONCLUSION
We have considered Lynk Labs’ remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the Board’s conclusion that claims 7–13 and 17 are
unpatentable.
AFFIRMED
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