United States Court of Appeals
`for the Federal Circuit
`______________________
`
`NOBEL BIOCARE SERVICES AG,
`Appellant
`
`v.
`
`INSTRADENT USA, INC.,
`Appellee
`______________________
`
`2017-2256
`______________________
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2015-
`01786.
`
`______________________
`
`Decided: September 13, 2018
`______________________
`
`JOHN B. SGANGA, JR., Knobbe, Martens, Olson & Bear,
`LLP, Irvine, CA, argued for appellant. Also represented
`by MICHELLE ARMOND, SHEILA N. SWAROOP.
`
` JUSTIN EDWIN GRAY, Foley & Lardner LLP, San
`Diego, CA, argued for appellee. Also represented by
`NICOLA ANTHONY PISANO, JOSE L. PATINO.
` ______________________
`
`Before PROST, Chief Judge, LOURIE and CHEN, Circuit
`Judges.
`
`

`

`2
`
`NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.
`
`LOURIE, Circuit Judge.
`Nobel Biocare Services AG (“Nobel”) appeals from the
`decision of the U.S. Patent and Trademark Office (“PTO”)
`Patent Trial and Appeal Board (“the Board”) in an inter
`partes review (“IPR”) holding claims 1–5 and 19 of U.S.
`Patent 8,714,977 (“the ’977 patent”) unpatentable. See
`Instradent USA, Inc. v. Nobel Biocare Servs. AG, No.
`IPR2015-01786, 2017 Pat. App. LEXIS 8329 (P.T.A.B.
`Feb. 15, 2017) (“Board Decision”); Instradent USA, Inc. v.
`Nobel Biocare Servs. AG, No. IPR2015-01786, 2017 WL
`1969639 (P.T.A.B. May 10, 2017) (“Rehearing Decision”).
`Because the Board did not err in its anticipation finding,
`we affirm.
`
`BACKGROUND
`I
`Nobel owns the ’977 patent directed to dental im-
`plants. The ’977 patent explains that a “feature of the
`invention” is that “the coronally tapered aspect [of the
`implant] is designed to allow elastic expansion of the bone
`while inserting the wider area of the coronally tapered
`aspect inside the bone and after insertion of the narrow
`area of the coronally tapered aspect the bone relapses to
`cover the coronally tapered aspect.” ’977 patent col. 5 l.
`66–col. 6 l. 4; see also id. col. 2 ll. 62–66, col. 12 ll. 51–57.
`The ’977 patent further states:
`In another preferred embodiment illustrated in
`FIG. 12 the coronally tapered region 85 is placed
`inside the bone so the bone can grow above this
`region. The tapered region 90 is below the bone
`level 91. The height of the coronally tapered re-
`gion 85 is 0.5–4 mm. Preferably the height is 1–3
`mm and for most cases 1.3–2.5 mm depending on
`the diameter of the implant.
`Id. col. 12 ll. 10–16 (emphasis added).
`
`

`

`NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.
`
`3
`
`Claim 1 is illustrative and reads as follows:
`A dental implant comprising:
`a body;
`a coronal region of the body, the coronal region
`having a frustoconical shape wherein a diameter
`of an apical end of the coronal region is larger
`than a diameter of a coronal end of the coronal re-
`gion;
`an apical region of the body, the apical region hav-
`ing a core with a tapered region wherein a diame-
`ter of an apical end of the core is smaller than a
`diameter of a coronal end of the core and the api-
`cal end of the core is substantially flat; and
`a pair of helical threads extending from the body
`along at least a portion of the apical region, each
`of the threads comprising an apical side, a coronal
`side, and a lateral edge connecting the apical side
`and the coronal side, a base connecting the
`threads to the core, a thread height defined be-
`tween the lateral edge and the base, the lateral
`edge having a variable width that is expanded
`along a segment in the direction of the coronal end
`of the apical region, so that a least width of the
`lateral edge of the threads is adjacent the apical
`end of the apical region and a greatest width of
`the lateral edge of the threads is adjacent the cor-
`onal end of the apical region, and the threads hav-
`ing a variable height
`that
`is expanded
`substantially along the segment of the implant in
`the direction of the apical end of the apical region,
`so that a least height of the threads is adjacent
`the coronal end of the apical region and a greatest
`height at apical end of the apical region; and
`
`

`

`4
`
`NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.
`
`a bone tap, wherein the helical threads starts at
`said bone tap and said substantially flat apical
`end of the core;
`wherein each of the helical threads have a thread
`step that is defined as a distance along a longitu-
`dinal axis of the dental implant covered by a com-
`plete rotation of the dental implant, the thread
`step is between 1.5-2.5 mm.
`Id. col. 17 l. 51–col. 18 l. 18 (emphasis added). Claim 2
`depends from claim 1 and contains the additional limita-
`tion “wherein the coronal region has a surface configured
`to be in contact with bone.” Id. col. 18 ll. 19–20.
`The application that led to the ’977 patent claims pri-
`ority from, inter alia, a PCT application filed on May 23,
`2004. The undisputed critical date for purposes of pre-
`AIA 35 U.S.C. § 102(b) (2006)1 is May 23, 2003. The ’977
`patent lists Ophir Fromovich, Yuval Jacoby, Nitzan
`Bichacho, and Ben-Zion Karmon as the inventors.
`II
`In or about the early 1990s, named inventor Fromo-
`vich founded Alpha-Bio Tech Ltd. (“ABT”), which sold
`dental implants and related goods. He also served as
`ABT’s CEO. In his capacity at ABT, Fromovich conducted
`dentist trainings and attended industry trade shows and
`conferences, including the International Dental Show
`(“IDS”) Conference held in Cologne, Germany. At the IDS
`Conference dental manufacturers would showcase their
`products and distribute written materials describing their
`
`
`1 Because the application that led to the ’977 patent
`was filed before March 16, 2013, the pre-Leahy–Smith
`America Invents Act (“AIA”), Pub L. No. 112-29, 125 Stat.
`284 (2011), version of § 102 applies.
`
`

`

`NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.
`
`5
`
`products. Nobel acquired ABT and its intellectual proper-
`ty rights in 2008.
`
`III
`On October 27, 2014, the U.S. International Trade
`Commission (“ITC”) instituted an investigation of Instra-
`dent USA, Inc.’s (“Instradent”) Drive CM dental implants
`based on a complaint filed by Nobel alleging violations of
`19 U.S.C. § 1337 by reason of importation of an implant
`product that infringes the ’977 patent and U.S. Patent
`8,764,443. Instradent alleged, inter alia, that claims 1–5
`and 19 of the ’977 patent were not infringed and were
`anticipated by an ABT “Product Catalog” with the date
`“March 2003” on the cover (“ABT Catalog”). J.A. 1718–75.
`The ABT Catalog discloses SPI dental implant screws
`of various sizes, including a 5 mm implant. J.A. 1732.
`The 5 mm SPI implant is illustrated as follows:
`
`Id. Below the illustration of the 5 mm SPI screw is the
`following description: “Implant surface: ‘Hybrid’ design
`2/3 apically S.L.A. (macro) 20-40µ + (micro) 2µ, 1/3 coro-
`nary Acid Etched 5-10µ. Increases clot retention and is
`conducive to bone healing.” Id. (emphases added).
`Another portion of the ABT Catalog with the heading
`“Wide platform implant analog for ø5 and ø6mmd” states:
`“It is possible to use the normal platform on all implants
`incloding [sic] the ø5 or ø6mmd implants. See illustration
`above.” J.A. 1746. The illustration above includes:
`
`

`

`6
`
`NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.
`
`Id.
`
`Fromovich testified about the ABT Catalog during the
`ITC proceedings. When asked why the catalog says
`“March 2003” on the cover, Fromovich indicated that he
`“estimated” it was because “in the end of March 2003,
`normally it’s IDS in Cologne, Germany, [which] is a big
`exposition. And in this exposition we go in looking for
`distributor[s].” J.A. 3485. Fromovich testified that ABT
`had a small booth at and he attended the March 2003 IDS
`Conference. According to Fromovich, the IDS Conference
`is “one of the biggest for distribution in Europe” with
`possibly a thousand attendees. J.A. 3490. He further
`testified that he did not recall if he brought the ABT
`Catalog to the conference, but that it was “unlikely.” J.A.
`3488. He explained that if he brought the ABT Catalog, it
`would have been a “small amount” of catalogs because it
`would have been a first version of a 62-page document,
`and ABT did not send a shipment so it would have had to
`fit in his luggage. J.A. 3489. Fromovich did not recall the
`number of ABT Catalogs printed, but estimated between
`200 and 500.
`Fromovich also testified that the ABT Catalog was
`used in connection with training courses and provided to
`attendees without requiring them to sign a confidentiality
`agreement. Instradent introduced additional evidence,
`including emails from ’977 patent inventor Karmon, that
`
`

`

`NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.
`
`7
`
`it alleged established the ABT Catalog’s publication prior
`to the May 2003 critical date.
`On October 27, 2015, the ITC’s Administrative Law
`Judge (“ALJ”) issued an Initial Determination finding
`claims 1–5 and 19 of the ’977 patent anticipated by the
`ABT Catalog. On May 11, 2016, the ITC issued a Com-
`mission Opinion which determined, inter alia, that In-
`stradent had failed to show by clear and convincing
`evidence that the ABT Catalog is prior art under § 102(b).
`The ITC construed the phrase “the coronal region having
`a frustoconical shape” in claim 1 (“frustoconical limita-
`tion”) as “the coronal region has partly or entirely, a
`frustoconical shape,” J.A. 4797, and held claims 1–5 and
`19 not anticipated, but infringed. A panel of this court
`affirmed without opinion. See Instradent USA, Inc. v.
`Int’l Trade Comm’n, 693 F. App’x 908, 909 (Fed. Cir.
`2017).
`
`IV
`On August 20, 2015, Instradent petitioned for IPR of
`claims 1–7, 9, and 13–20 of the ’977 patent. Nobel subse-
`quently filed a statutory disclaimer of claims 9 and 13–18
`of the ’977 patent under 35 U.S.C. § 253(a). The Board
`instituted IPR of claims 1–5, 19, and 20 on the grounds of
`unpatentability under 35 U.S.C. § 102 over the ABT
`Catalog and/or 35 U.S.C. § 103 over other references not
`at issue on appeal. Instradent USA, Inc. v. Nobel Biocare
`Servs. AG, No. IPR2015-01786, slip op. (P.T.A.B. Feb. 19,
`2016), Paper No. 14 (“Institution Decision”). In accord-
`ance with its then existing regulations, the Board de-
`clined to institute IPR over certain other grounds and
`claims, including the disclaimed claims. Id. at *6-7, 27;
`see 37 C.F.R. § 42.108(a); 37 C.F.R. § 42.107(e) (“The
`patent owner may file a statutory disclaimer under 35
`U.S.C. [§] 253(a) in compliance with § 1.321(a) of this
`chapter, disclaiming one or more claims in the patent. No
`
`

`

`8
`
`NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.
`
`inter partes review will be instituted based on disclaimed
`claims.”).
`The Board adopted the same construction of the frus-
`toconical limitation as the ITC, i.e., “the coronal region
`has, partly or entirely, a frustoconical shape.” Board
`Decision, 2017 Pat. App. LEXIS 8329, at *20. It explained
`that “there is nothing that physically or logically prevents
`the coronal region from ‘having’ a portion that is frusto-
`conical in shape and a portion that is not.” Id. at *15.
`The Board concluded that the specification supported its
`construction. Id. at *16–20.
`In addressing public accessibility of the ABT Catalog,
`the Board considered evidence that had been presented to
`the ITC,2 including Fromovich’s testimony, and new
`evidence not considered by the ITC, including the declara-
`tions and deposition testimony of Yechiam Hantman and
`Zvi Chakir. In March 2003, Hantman and Chakir co-
`owned Chakir Implants, Ltd., a dental supply distributor
`located in Israel. J.A. 3348 ¶ 2; J.A. 3411 ¶¶ 2–3. Based
`on prior customer conversations regarding ABT’s SPI
`implant, Hantman stated “it was a specific goal of mine to
`collect materials from the March 2003 IDS trade show
`describing the SPI implant.” J.A. 3349 ¶ 7. Because
`Hantman was unable to attend the conference, he re-
`quested that Chakir collect catalogs from competitors at
`the 2003 IDS Conference and give them to him upon his
`return. Hantman’s declaration stated: “Based upon my
`review of the attached materials and my specific recollec-
`tions of conversations with customer [sic] in later 2002
`and early 2003, and examination of the 2003 [ABT] Cata-
`
`2 The Board noted it was “not bound by the ITC’s
`fact findings or conclusions,” and thus made an “inde-
`pendent determination based on the record in [the] inter
`partes review.” Board Decision, 2017 Pat. App. LEXIS
`8329, at *22.
`
`

`

`NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.
`
`9
`
`log after receiving it after the IDS trade show, I am
`certain that the 2003 [ABT] Catalog was publically acces-
`sible to the dental industry, including competitors, in
`March 2003, after the IDS show that year.” J.A. 3352
`¶ 14.
`Chakir’s declaration stated that he “collected catalogs
`and other materials from competitors, . . . including
`[ABT]” at the 2003 IDS Conference and “gave the materi-
`als relating to dental implants to Mr. Hantman upon [his]
`return.” J.A. 3412 ¶ 5. At his deposition in 2016, Chakir
`testified that he did not recall the specific brochures he
`brought back from the 2003 IDS Conference, and that the
`2003 IDS Conference was the only time he collected
`dental implant brochures because he was not personally
`interested in dental implants. Chakir testified that
`gathering brochures “is open to everyone” at the IDS
`Conference and not done in secret. J.A. 5796–98.
`The Board “determine[d] that a preponderance of the
`evidence establishes that the ABT Catalog qualifies as a
`prior art printed publication under [pre-AIA] 35 U.S.C.
`§ 102(b).” Board Decision, 2017 Pat. App. LEXIS 8329, at
`*39. The Board found that “the ABT Catalog was made
`available, without restriction, to members of the interest-
`ed public at least during the March 2003 IDS Confer-
`ence,” and that “the evidence tends to show that any
`interested conference attendee could have obtained a copy
`of the ABT Catalog from the ABT booth during the March
`2003 IDS Conference.” Id. at *37–38.
`The Board then applied its construction of the frusto-
`conical limitation to find that the ABT Catalog’s disclo-
`sure of the SPI 5 mm implant with a frustoconical bevel
`at the coronal-most portion anticipated claim 1. Id. at
`*40–44. The Board reproduced Nobel’s annotated version
`of the 5 mm implant disclosed in the ABT Catalog:
`
`

`

`10
`
`NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.
`
`Id. at *40 (citing Patent Owner Response at 39).
`Nobel did not present separate arguments for claims
`3–5 and 19, and the Board thus held those claims antici-
`pated as well. Id. at *46. With respect to dependent
`claim 2, the Board assumed arguendo that Nobel’s pro-
`posed construction for “the coronal region has a surface
`configured to be in contact with bone” to mean “designed
`or constructed to enhance osseointegration” was correct.
`Id. at *44–45. Applying that construction, the Board
`found claim 2 anticipated by the ABT Catalog based on
`the disclosure of acid etching directly beneath the image
`of the SPI 5 mm implant found to anticipate claim 1. Id.
`at *45–46. The Board upheld the patentability of claims
`1–5, 19, and 20 over an obviousness challenge based on
`different references, a determination from which no party
`has appealed.
`The Board subsequently denied Nobel’s request for
`rehearing based on alleged errors in the Board’s construc-
`tion of the frustoconical limitation. The Board explained
`that while it had “declined to categorically exclude small
`bevels from our construction,” it “also indicated expressly
`that the construction adopted in our Final Written Deci-
`sion did not permit any inconsequential variations in edge
`sharpness to be a frustoconical region.” Rehearing Deci-
`sion, 2017 WL 1969639, at *1 (internal quotation marks
`and citations omitted) (emphasis in original).
`
`

`

`NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.
`
`11
`
`Nobel timely appealed the anticipation finding. On
`appeal, Nobel challenges the Board’s holding that the
`ABT Catalog is prior art, its claim construction, and its
`anticipation analysis. We address each issue in turn.
`DISCUSSION
`I. Jurisdiction
`We first address whether we have jurisdiction over
`the entirety of Nobel’s appeal. In SAS Institute, Inc. v.
`Iancu, the Supreme Court held that 35 U.S.C. § 318(a)
`prohibits the Board from instituting IPR on fewer than all
`claims challenged in a petition. 138 S. Ct. 1348, 1353
`(2018). Here, in accordance with its pre-SAS regulations,
`the Board instituted IPR on fewer than all challenged
`claims and grounds. On appeal, neither party has re-
`quested a remand for the Board to consider non-instituted
`claims or grounds, or any other SAS-based relief.
`Since the Court’s decision in SAS, we have addressed
`similar situations where no party has requested any SAS-
`based relief. In those circumstances, we have held that
`we have jurisdiction over the appeal, and that any Admin-
`istrative Procedure Act error committed by the Board in
`partially instituting IPR was waivable. See, e.g., PGS
`Geophysical AS v. Iancu, 891 F.3d 1354, 1359–62 (Fed.
`Cir. 2018); Jazz Pharm., Inc. v. Amneal Pharm., LLC, 895
`F.3d 1347, 1354–55 (Fed. Cir. 2018). In accordance with
`our precedent, we conclude that we have jurisdiction over
`Nobel’s appeal under 28 U.S.C. § 1295(a)(4)(A) and are
`not obliged to reopen non-instituted claims or grounds.
`We see no reason to exercise any discretion to remand the
`non-instituted claims or grounds sua sponte.
`II. Anticipation
`We now turn to the merits of the appeal. We review
`the Board’s legal determinations de novo, In re Elsner,
`381 F.3d 1125, 1127 (Fed. Cir. 2004), but we review the
`Board’s factual findings underlying those determinations
`
`

`

`12
`
`NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.
`
`for substantial evidence, In re Gartside, 203 F.3d 1305,
`1316 (Fed. Cir. 2000). A finding is supported by substan-
`tial evidence if a reasonable mind might accept the evi-
`dence to support the finding. Consol. Edison Co. v.
`NLRB, 305 U.S. 197, 229 (1938).
`Anticipation is a question of fact that we review for
`substantial evidence. In re Rambus, Inc., 753 F.3d 1253,
`1256 (Fed. Cir. 2014). A prior art document may antici-
`pate a claim if it describes every element of the claimed
`invention, either expressly or inherently. Husky Injection
`Molding Sys. Ltd. v. Athena Automation Ltd., 838 F.3d
`1236, 1248 (Fed. Cir. 2016).
`A. Public Accessibility
`The parties dispute whether the ABT Catalog quali-
`fies as a “printed publication” under pre-AIA § 102(b).
`Whether a reference qualifies as a “printed publication” is
`a legal conclusion based on underlying factual findings.
`Jazz Pharm., 895 F.3d at 1356. The underlying factual
`findings include whether a reference was publicly accessi-
`ble. In re NTP, Inc., 654 F.3d 1279, 1296 (Fed. Cir. 2011).
`In an IPR, the petitioner bears the burden of establishing
`by a preponderance of the evidence that a particular
`document is a printed publication. Medtronic, Inc. v.
`Barry, 891 F.3d 1368, 1380 (Fed. Cir. 2018).
` “Because there are many ways in which a reference
`may be disseminated to the interested public, ‘public
`accessibility’ has been called the touchstone in determin-
`ing whether a reference constitutes a ‘printed publication’
`. . . .” In re Hall, 781 F.2d 897, 898–99 (Fed. Cir. 1986).
`“A reference will be considered publicly accessible if it was
`disseminated or otherwise made available to the extent
`that persons interested and ordinarily skilled in the
`subject matter or art exercising reasonable diligence can
`locate it.” Medtronic, 891 F.3d at 1380 (internal quotation
`marks and citations omitted). “Whether a reference is
`publicly accessible is determined on a case-by-case basis
`
`

`

`NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.
`
`13
`
`based on the ‘facts and circumstances surrounding the
`reference’s disclosure to members of the public.’” In re
`Lister, 583 F.3d 1307, 1311 (Fed. Cir. 2009) (quoting In re
`Klopfenstein, 380 F.3d 1345, 1350 (Fed. Cir. 2004)).
`We first note that we are not bound by our prior af-
`firmance of the ITC’s holding that there was insufficient
`evidence to find pre-critical date public accessibility. The
`parties agree that our prior decision is not binding on this
`factual issue. Oral Arg. at 13:05–14:17, 26:49–28:36. As
`the Board correctly observed, the evidentiary standard in
`its proceedings, preponderance of the evidence, is differ-
`ent from the higher standard applicable in ITC proceed-
`ings, clear and convincing evidence. See Board Decision,
`2017 Pat. App. LEXIS 8329, at *22. The Board also had
`“more evidence on this issue than what was before the
`ITC.” Id. Moreover, we apply a substantial evidence
`standard of review to both ITC and Board factual find-
`ings, “and the possibility of drawing two inconsistent
`conclusions from the evidence does not prevent an admin-
`istrative agency’s finding from being supported by sub-
`stantial evidence.” Consolo v. Fed. Mar. Comm’n, 383
`U.S. 607, 620 (1966). We thus conclude that our prior
`affirmance of the ITC’s judgment on a different factual
`record with a different burden of proof does not dictate
`the outcome of this appeal.
`Nobel argues that the Board’s finding that the ABT
`Catalog was publicly accessible at the March 2003 IDS
`Conference lacks substantial evidence. Nobel contends
`that the testimony of Chakir, Hantman, and Fromovich
`does not establish public accessibility and, in any event,
`the testimony is uncorroborated. Nobel maintains that
`the Board legally erred by failing to consider the required
`factors relating to the alleged public disclosure.
`Instradent responds that substantial evidence sup-
`ports the Board’s finding of pre-critical date public acces-
`sibility.
` According to Instradent, the testimony of
`
`

`

`14
`
`NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.
`
`Hantman and Chakir established that the ABT Catalog
`was freely distributed at the March 2003 IDS Conference
`and was sufficiently corroborated. Instradent contends
`that the other evidence before the Board, including
`Fromovich’s testimony, also supports the Board’s finding
`of public accessibility. Instradent further argues that the
`Board correctly considered all relevant factors in making
`its determination.
`We agree with Instradent that substantial evidence
`supports the Board’s finding that the ABT Catalog was
`publicly accessible prior to the critical date. The Board
`credited Chakir and Hantman’s testimony that Chakir
`obtained a copy of the ABT Catalog at the March 2003
`IDS Conference and that Hantman retained that copy in
`his records thereafter. Hantman’s declaration included
`excerpts of his copy of the ABT Catalog taken from his
`files. The Board found that Hantman’s copy of the ABT
`Catalog and the copy offered as prior art by Instradent in
`the IPR had identical pages except for some handwriting
`on the cover of Hantman’s copy. Nobel does not dispute
`this finding. Hantman and Chakir provided specific
`details as to why Chakir collected dental implant bro-
`chures for Hantman at the March 2003 IDS Conference.
`Hantman further provided specific details as to why he
`remembers the circumstances under which he received
`the ABT Catalog. The Board reasonably credited their
`combined testimony as supporting its public accessibility
`finding. See TypeRight Keyboard Corp. v. Microsoft Corp.,
`374 F.3d 1151, 1159 (Fed. Cir. 2004) (stating that the
`proffered testimony of two witnesses relating to public
`accessibility at a trade show “is sufficient to support a
`jury finding that the Marquardt document is prior art”).
`Additionally, the ABT Catalog has the date “March
`2003” on its cover. Although the ABT Catalog’s date is
`not dispositive of the date of public accessibility, its date
`is relevant evidence that supports the Board’s finding of
`public accessibility at the March 2003 IDS Conference.
`
`

`

`NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.
`
`15
`
`Indeed, Fromovich testified that the catalog likely had the
`March 2003 date because “the end of March 2003” is
`“normally” when the IDS Conference is held in Germany.
`J.A. 3485. No other basis for the March 2003 date has
`been suggested by Nobel. Moreover, the Board found, and
`Nobel does not dispute on appeal, that the ABT Catalog is
`“the type[] of document[] normally intended for public
`dissemination.” Board Decision, 2017 Pat. App. LEXIS
`8329, at *29. On this record, the mere fact that Nobel
`elicited testimony on cross-examination that Chakir and
`Hantman attended post-critical date conferences where
`ABT had a booth does not indicate that Hantman’s copy of
`the ABT Catalog must have been obtained after the
`critical date. Substantial evidence supports the Board’s
`public accessibility finding.
`We reject Nobel’s contentions that Instradent adduced
`no evidence concerning the circumstances of the ABT
`Catalog’s disclosure at the IDS Conference, and that the
`Board erred in its analysis of the factors relevant to public
`accessibility. It is undisputed that ABT had a booth at
`the 2003 IDS Conference. Although Chakir had no specif-
`ic recollection of visiting the ABT booth or seeing the ABT
`Catalog at 2003 IDS Conference, he testified that he
`collected materials from “all the implant companies that
`manufacture in Israel” at the conference, J.A. 5801, which
`included ABT, J.A. 3412 ¶ 5. Chakir also testified about
`his habitual practice in obtaining product literature,
`including brochures, at the IDS Conference. Such
`“[e]vidence of a person’s habit . . . may be admitted to
`prove that on a particular occasion the person . . . acted in
`accordance with the habit or routine practice.” Fed. R.
`Evid. 406; see Hall, 781 F.2d at 899 (holding “that compe-
`tent evidence of the general library practice may be relied
`upon to establish an approximate time when a thesis
`became accessible”).
`Similarly, Nobel’s suggestion that Chakir could have
`obtained the ABT Catalog “confidentially or under other
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`16
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`NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.
`
`circumstances that would not legally constitute public
`accessibility,” Appellant Br. 39, lacks evidentiary basis.
`Chakir testified that gathering product literature, e.g.,
`brochures, at the IDS Conference “is open to everyone”
`and that such materials were “outside [the booth such]
`that everyone on the corridor can take” them. J.A. 5796–
`98. He further explained that attendees are given a “bag
`to put [product literature] in . . . so they want you to take
`it.” J.A. 5798. Hantman similarly testified that although
`he and Fromovich “were not friends, so I couldn’t call him
`and say, send me a catalog. . . . But in a -- in a big event
`like [the IDS Conference] why not? You can take whatev-
`er is open to the public. And Chakir was part of the
`public.” J.A. 6075. The fact that Fromovich would not
`have specially sent Hantman the ABT Catalog does not
`imply that the ABT Catalog was not publicly distributed
`at the 2003 IDS Conference.
`Additionally, Nobel points to no evidence that ABT
`ever distributed the ABT Catalog with an expectation
`that it would be kept confidential or not disseminated.
`See Cordis Corp. v. Boston Sci. Corp., 561 F.3d 1319,
`1333–34 (Fed. Cir. 2009) (explaining “a binding agree-
`ment of confidentiality may defeat a finding of public
`accessibility” and “‘[w]here professional and behavioral
`norms entitle a party to a reasonable expectation’ that
`information will not be copied or further distributed, ‘we
`are more reluctant to find something a printed publica-
`tion.’” (quoting Klopfenstein, 380 F.3d at 1350–51) (altera-
`tion in original)). While Fromovich testified about how he
`would have used the ABT Catalog if he had brought it to
`the 2003 IDS Conference, e.g., showing it to potential
`distributors and doctors, he did not mention confidentiali-
`ty restrictions or any expectation that the disclosure
`would not be shared.
`Moreover, it is undisputed on appeal that the ABT
`Catalog is the type of document intended for public dis-
`semination, and it bears no designations, such as “draft”
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`

`

`NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.
`
`17
`
`or “confidential,” that might suggest that it was not
`intended for public distribution. Indeed, Fromovich
`testified that the ABT Catalog was provided to trainees
`during training sessions without requiring them to sign a
`confidentiality agreement. In short, Nobel has pointed to
`no evidence in the record to dispute the above evidence
`indicating that the ABT Catalog was distributed without
`confidentiality obligations and not otherwise under cir-
`cumstances that could undercut a finding of public acces-
`sibility.
` See, e.g., Medtronic, 891 F.3d at 1382
`(summarizing “common [public accessibility] considera-
`tions about materials that are distributed at meetings or
`conferences”). We thus perceive no error in the Board’s
`public accessibility finding on this basis.
`We next address the sufficiency of the corroboration of
`the testimony. “[C]orroboration is required of any witness
`whose testimony alone is asserted to invalidate a patent,
`regardless of his or her level of interest.” Finnigan Corp.
`v. Int’l Trade Comm’n, 180 F.3d 1354, 1369 (Fed. Cir.
`1999). Corroborating evidence may include documentary
`or testimonial evidence. See TransWeb, LLC v. 3M Inno-
`vative Props. Co., 812 F.3d 1295, 1301 (Fed. Cir. 2016).
`Circumstantial evidence can be sufficient corroboration.
`Id. We have articulated a number of factors that may be
`considered in assessing the sufficiency of the corrobora-
`tion in prior invention or public use cases:
`(1) the relationship between the corroborating
`witness and the alleged prior user,
`(2) the time period between the event and trial,
`(3) the interest of the corroborating witness in the
`subject matter in suit,
`(4) contradiction or impeachment of the witness’
`testimony,
`(5) the extent and details of the corroborating tes-
`timony,
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`18
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`NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.
`
`(6) the witness’ familiarity with the subject matter
`of the patented invention and the prior use,
`(7) probability that a prior use could occur consid-
`ering the state of the art at the time,
`(8) impact of the invention on the industry, and
`the commercial value of its practice.
`Woodland Tr. v. Flowertree Nursery, Inc., 148 F.3d 1368,
`1371 (Fed. Cir. 1998). We apply a “rule of reason” analy-
`sis to the corroboration requirement, id. at 1371, which
`“involves an assessment of the totality of the circum-
`stances including an evaluation of all pertinent evidence,”
`Adenta GmbH v. OrthoArm, Inc., 501 F.3d 1364, 1372
`(Fed. Cir. 2007). Sufficiency of corroboration is a question
`of fact. Fleming v. Escort Inc., 774 F.3d 1371, 1377 (Fed.
`Cir. 2014).
`We disagree with Nobel that corroboration is legally
`insufficient in this case. The Board found “the testimony
`of Messrs. Hantman and Chakir not only to be corroborat-
`ed by each other, but also by a) the actual copy of the ABT
`Catalog[, dated March 2003,] submitted as evidence and
`b) Dr. Fromovich’s testimony that ABT operated a booth
`at the March 2003 IDS conference.” Board Decision, 2017
`Pat. App. LEXIS 8329, at *36 (citations omitted). Under
`the circumstances of this case, this constitutes sufficient
`corroboration of Hantman and Chakir’s testimony relat-
`ing to the pre-critical date public accessibility of the ABT
`Catalog.3
`We reject Nobel’s contention that Chakir and Hant-
`man’s testimony cannot be corroborated by each other’s
`and Fromovich’s testimony. The testimony of one witness
`
`
`3 Because we view this evidence as sufficient for
`corroboration purposes, we do not address the additional
`evidence Instradent points to as additional corroboration.
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`

`NOBEL BIOCARE SERVICES AG v. INSTRADENT USA, INC.
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`19
`
`may corroborate the testimony of another witness. See
`Sandt Tech., Ltd. v. Resco Metal & Plastics Corp., 264
`F.3d 1344, 1351 (Fed. Cir. 2001) (explaining in a pre-AIA
`§ 102(g)(2) invalidity challenge that “oral testimony of
`someone other than the alleged inventor may corroborate
`an inventor’s testimony”). As discussed above, Chakir
`and Hantman told a coherent story as to how Hantman
`came into possession of his copy of the ABT Cat