The appeal

The case is Google LLC v. DDC Technology, LLC, Nos. 2025-1315, 2025-1316, and 2025-1330 (Fed. Cir. Nov. 5, 2026) (precedential), an appeal by Google LLC from three final written decisions of the Patent Trial and Appeal Board in IPR2023-00707, IPR2023-00709, and IPR2023-00711. Google's petitions challenged claims of U.S. Patents 9,420,075, 10,528,199, and 11,093,001, which the opinion states are assigned to DDC Technology, LLC. The panel was Judges Reyna, Hughes, and Stark, and Judge Reyna wrote the opinion. The court had jurisdiction under 28 U.S.C. 1295(a)(4)(A). It reviewed the Board's claim constructions based on intrinsic evidence de novo, its underlying fact findings for substantial evidence, its ultimate obviousness determination de novo, and its compliance with the Administrative Procedure Act de novo.

The patents

U.S. Patent 9,420,075, U.S. Patent 10,528,199, and U.S. Patent 11,093,001 are each titled "Virtual Reality Viewer and Input Mechanism." The '075 patent issued August 16, 2016, the '199 patent issued January 7, 2020, and the '001 patent issued August 17, 2021. The opinion states that the three patents share a common specification, which describes a virtual reality viewer with a housing that receives a smartphone and an input mechanism that a user can manipulate from outside the housing and that, when actuated, contacts the smartphone's touchscreen.

The opinion quotes claim 1 of the '075 patent as an example. It recites a virtual reality viewer for use with a mobile electronic device having a touch-screen. The viewer has a housing configured to hold the device so that the touch-screen is generally centered in a horizontal direction and directly in the user's field of view, and an input mechanism that is accessible from an exterior of the housing and is moveable within the interior between at least a first position and an extended position. The input mechanism comprises an electrical shield having a surface, where only a portion of the surface is configured to contact a central region of the touch-screen when the input mechanism is in the extended position.

The Board decisions

In all three IPRs, Google asserted the same combination of two references against every challenged claim: Japanese Patent Publication JP 3176588 and U.S. Patent Application Publication 2013/0082963. According to the opinion, the first describes an attachment that holds a smartphone and has a remote touch circuit for entering operations from outside, and the second describes an actuator mechanism for operating a capacitive touch screen of a device held in a waterproof housing. Google's theories replaced the first reference's remote touch circuit with an embodiment of the second reference's actuator mechanism.

According to the opinion, the Board determined that Google proved certain of the challenged claims unpatentable but failed to prove unpatentability of claims 1 to 12, 14, and 18 to 20 of the '075 patent, claims 1, 2, 4 to 6, and 17 to 26 of the '199 patent, and claims 27 and 28 of the '001 patent, which the opinion calls the surviving claims. Google appealed the Board's judgment as to the surviving claims.

In a final written decision dated October 24, 2024 in IPR2023-00707, the Board determined that Google had not shown any of claims 1 to 12, 14, and 18 to 20 of the '075 patent unpatentable. In final written decisions dated November 4, 2024, the Board determined in IPR2023-00709 that Google had shown claims 30, 34, 35, and 37 to 39 of the '199 patent unpatentable but not claims 1, 2, 4 to 6, and 17 to 26, and in IPR2023-00711 that Google had shown claims 1 to 26, 29, and 30 of the '001 patent unpatentable but not claims 27 and 28.

For claim 1 of the '075 and '199 patents, the Board found that the two references together teach each limitation and that a skilled artisan would have been motivated to combine them with a reasonable expectation of success. It also found that DDC established copying by Google, which it weighed heavily and called strong evidence of nonobviousness, and industry praise, which it gave moderate weight. The Board concluded that, on balance, the evidence tending to show nonobviousness outweighed the evidence of obviousness.

The issues on appeal

Google raised six issues on appeal: the Board's treatment of copying, industry praise, and the ultimate obviousness determination for claim 1 of the '075 and '199 patents, the constructions of "disposed on" in claim 18 and "lever" in claim 20 of the '075 patent, the "guide" limitation of claim 20, claim 27 of the '001 patent, and claim 28 of the '001 patent. The court addressed them in turn.

Claim 1 of the '075 and '199 patents

Google argued that the Board's copying analysis was legally flawed because the Board compared Google's viewer and DDC's allegedly copied products to the challenged claims instead of to each other. The court disagreed, stating that the correct comparison is between the alleged patented devices and the alleged copied product and that the Board made that comparison, including by comparing the input mechanisms of the products. It noted that the Board had identified two differences between the input mechanisms and characterized them as minor, non-material modifications, and it affirmed the Board's finding that DDC demonstrated copying. On industry praise, the evidence was emails from three Google engineers who responded to a prospective business partner's email sharing videos of a prototype viewer, with comments such as "That button is genius." The court concluded that substantial evidence supported the Board's finding, noting that the engineers were responding to a third party about a non-Google prototype and that the Board had discounted one response as a polite reply and had accounted for the business context of the others.

On the ultimate obviousness determination, Google argued that its strong prima facie case outweighed DDC's objective indicia evidence. The court concluded that the Board did not legally err. Quoting its precedent, it stated that evidence of secondary considerations must always be considered when present en route to a determination of obviousness, and that the argument that objective considerations can never overcome a strong prima facie case is contrary to law. It described the prima facie case as a procedural tool of patent examination, quoted its precedent rejecting any formal burden-shifting framework in evaluating the four Graham factors, and cited its precedent recognizing that the burden-shifting framework does not apply in the adjudicatory context of an IPR. The court acknowledged, quoting its precedent, that a strong case of prima facie obviousness cannot be overcome by a far weaker showing of objective indicia, but said that was not the case here: the Board never characterized Google's evidence of obviousness as strong, it found a motivation to combine only after rejecting two other rationales Google offered and after a contested trial, and DDC did not concede the point. Google did not challenge the weight the Board gave the copying and industry praise findings, and the court affirmed.

Claim 18 of the '075 patent

Google argued that the Board construed "disposed on" to require direct contact. The court stated that the Board never so concluded; it disagreed only that "disposed on" includes indirect connections that are far removed. The court affirmed that construction, reasoning that the claim pairs a first portion with a first surface and a second portion with a second surface, so that a reading allowing one element to separate a paired element from its partner ignores the claim's structure, and that the specification uses "disposed" as a synonym for "located."

Claim 20 of the '075 patent

The Board construed "lever" as "a stiff body pivoted on a fulcrum." The court affirmed that construction, citing the lever embodiment in the specification's Figures 7A to 7E, in which the housing acts as a fulcrum for a rigid lever, and a mechanical engineering dictionary definition that the Board found most probative. Because Google's obviousness argument depended on its broader construction, the court held that substantial evidence supported the Board's finding that Google failed to establish unpatentability of claim 20, and it did not reach Google's separate argument about the claim's "guide" limitation.

Claim 27 of the '001 patent

Google argued that the Board implicitly construed "linkage element . . . made from a flexible material" to require a linkage element made only from flexible material, without notice, in violation of the APA. The Board had found that Google relied on two components of the second reference for the linkage element but asserted only that one was flexible. The court disagreed that the Board committed an APA violation, stating that in its institution decision the Board had invited further argument and evidence on the claim, that Google did not further address the claim in its reply, and that Google therefore did not face the kind of midstream change of theory that violates the APA. The court did not disturb the Board's determination that Google failed in its proof.

Claim 28 of the '001 patent

Google relied on a single component of the second reference as both the "memory material" and the "linkage element." The Board noted at institution that this appeared inconsistent with the requirement that the memory material be coupled to the linkage element, invited more argument, and found in its final written decision that Google did not reconcile the mapping. The court stated that Google's argument on appeal for a specific construction of "coupled to" was forfeited because Google did not present it to the Board, and it affirmed.

The court considered Google's remaining arguments and found them unpersuasive, and it affirmed the Board's judgments on the surviving claims.