Case: 21-1923 Document: 28 Page: 1 Filed: 08/12/2022
`
`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`KAMSTRUP A/S,
`Appellant
`
`v.
`
`AXIOMA METERING UAB,
`Appellee
`______________________
`
`2021-1923
`______________________
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2019-
`01640.
`
`______________________
`
`Decided: August 12, 2022
`______________________
`
`MARK JOHNSON, Renner Otto, Cleveland, OH, for ap-
`pellant. Also represented by SARAH LOUISE BOONE, KYLE
`BRADFORD FLEMING.
`
` DAVID W. ALDRICH, Forge IP, PLLC, Shelton, CT, for
`appellee. Also represented by TODD M. OBERDICK.
` ______________________
`
`Before REYNA, MAYER, and CUNNINGHAM, Circuit Judges.
`REYNA, Circuit Judge.
`
`

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`KAMSTRUP A/S v. AXIOMA METERING UAB
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`Kamstrup A/S appeals a final written decision of the
`Patent Trial and Appeal Board. The Board found claims
`1–15 of Kamstrup’s U.S. Patent No. 8,806,957 unpatenta-
`ble as obvious or anticipated. On appeal, Kamstrup chal-
`lenges the Board’s claim constructions. In addition,
`Kamstrup challenges the Board’s anticipation and obvious-
`ness determinations largely on the basis that the Board
`erred in rejecting Kamstrup’s claim construction argu-
`ments. We affirm.
`
`BACKGROUND
`The ’957 Patent
`Kamstrup owns U.S. Patent No. 8,806,957 (the “’957
`patent”). The ’957 patent describes ultrasonic flow meters
`and housings. ’957 patent abstract. The specification dis-
`closes that the meters are used for “calculating a consumed
`quantity of water, heat, cooling, gas or the like.” Id. at
`1:27–30. Ultrasonic flow meters include “housing” to pro-
`tect electronic components, such as a display or battery. Id.
`at 1:32–38.
`The ’957 patent is directed to “an ultrasonic flow meter
`housing in the form of a monolithic polymer structure being
`cast in one piece.” Id. at 1:58–60. It explains that “the pre-
`sent invention can be fabricated with a reduced number of
`steps compared to existing meters, since only a single step
`
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`KAMSTRUP A/S v. AXIOMA METERING UAB
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`is used to form the monolithic polymer structure.” Id. at
`2:6–9. Figure 1A shows an embodying flow meter housing:
`
`Independent claim 1 states:
`An ultrasonic flow meter housing compris-
`ing:
`a monolithic polymer structure being cast
`in one piece, the monolithic structure in-
`cludes a flow tube and a cavity separated
`from the flow tube, wherein the flow tube
`defines a through-going straight flow sec-
`tion arranged for passage of a fluid between
`an inlet and an outlet, wherein a part of a
`wall of the flow section is part of an inside
`surface of the cavity, so that the flow section
`and the cavity has a shared wall area; and
`wherein the cavity is arranged for housing
`at least one ultrasonic transducer, at the
`shared wall area; and
`a measurement circuit operationally con-
`nected to the at least one ultrasonic trans-
`ducer so as to allow measurement of a flow
`rate of the fluid.
`
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`KAMSTRUP A/S v. AXIOMA METERING UAB
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`Id. at 6:40–55 (emphasis added).
`Inter Partes Review
`On September 23, 2019, Axioma petitioned for inter
`partes review of all 15 claims of the ’957 patent. The Pa-
`tent Trial and Appeal Board instituted review. In its final
`written decision, the Board found the challenged claims
`unpatentable as obvious or anticipated. Axioma Metering
`UAB v. Kamstrup A/S, No. IPR2019-01640, 2021 WL
`1235790 (P.T.A.B. Apr. 1, 2021).
`In reaching its final written determination, the Board
`construed elements of the claims. In particular, it con-
`strued “cast in one piece” as a product-by-process claim el-
`ement. Id. at *5–9. The Board explained that the claim
`language describes the process of “casting” the polymer
`housing and does not describe the housing’s structure. Id.
`at *6. After construing the claim element, the Board con-
`cluded that it does not impart patentable weight to the
`claims and thus should not be considered as part of any
`anticipation or obviousness analysis. Id. at *5–9. The
`Board explained that Kamstrup did not present any evi-
`dence showing that the claim element provided structural
`and functional differences distinguishing it from the prior
`art. Id. (citing Greenliant Sys., Inc. v. Xicor LLC, 692 F.3d
`1261, 1268 (Fed. Cir. 2012). Thus, it concluded that the
`claim element was not entitled to patentable weight. Id.
`The Board also construed the phrase “cavity separated
`from the flow tube” to require that the interior of the flow
`tube is separated from the surrounding cavity by the
`shared wall. Id. at *9–10. In doing so, the Board rejected
`Kamstrup’s argument that the cavity cannot surround the
`flow tube. Id. The Board explained that Kamstrup’s pro-
`posed construction was at odds with the claim language,
`which merely requires that “the flow tube cannot be so sep-
`arated from the cavity that no part of the flow section
`shares a wall with the cavity.” Id. at *10. The Board also
`pointed to similar disclosure in the specification. Id.
`
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`KAMSTRUP A/S v. AXIOMA METERING UAB
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`Based on its construction of the above terms, the Board
`found that European Patent Application EP 1 482 284 A1
`(“Ueki”) anticipates independent claims 1 and 11 and de-
`pendent claims 2, 5, 7, 9, 12, and 13 of the ’957 patent. Id.
`at *20.
`Ueki is titled “Flow sensor” and “relates to a flow sen-
`sor for detecting the flow quantity of a fluid.” Ueki ¶ 1.
`Figure 11 “is an exploded perspective view of the detection
`section of the flow sensor.” Id. at ¶ 86.
`
`Id. at Fig. 11.
`The detection section (500) includes casing members
`(21, 22, and 23) and a through water pipe line (10). Id. at
`¶ 87. Ueki further discloses that the water pipe line is
`“formed integrally” with casing member 22. Id.
`
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`KAMSTRUP A/S v. AXIOMA METERING UAB
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`The Board explained that the parties’ dispute concern-
`ing Ueki centered on the “cast in one piece” and “cavity sep-
`arated from the flow tube” claim elements of claims 1 and
`11. Axioma, 2021 WL 1235790, at *13. The Board rejected
`Kamstrup’s argument that Ueki did not disclose the “cast
`in one piece” claim element. Id. The Board explained that
`because “cast in one piece” is a product-by-process claim el-
`ement that does not impart patentable weight to the
`claims, it cannot be considered as part of the anticipa-
`tion/obviousness analysis. Id.
`Next, the Board explained that Ueki disclosed the “cav-
`ity separated from flow tube” limitation. Id. at *14. Spe-
`cifically, the Board explained that Kamstrup’s arguments
`were conditioned on its rejected claim construction that the
`limitation precluded the cavity surrounding the flow tube.
`Id. The Board found the limitation disclosed because
`Ueki’s through water pipe line runs through a circuit/sen-
`sor housing area and is separated from the circuit/sensor
`housing area by the outer surface of the through water pipe
`line. Id. Finally, the Board found that Ueki disclosed the
`remaining limitations of claims 1 and 11. Id. at *14–15.
`The Board also relied on Ueki as the primary reference
`to find the remaining claims obvious. Relevant here is the
`Board’s finding that U.S. Patent Nos. 6,248,077 (“Elson”)
`and/or 4,476,877 (“Barker”) in combination with Ueki
`rendered claims 6 and 8 obvious.1
`
`
`1 Claim 6 recites: “The flow meter housing according
`to claim 1, wherein the flow section has one or more pro-
`trusions or indentions at the inside of the flow section serv-
`ing to engage with an associated measurement tube element
`or an ultrasonic reflector arrangement.” ’957 patent at
`7:3–7 (emphasis added). Claim 8 recites: “The flow meter
`housing according claim 1, further comprising a metal
`pocket cast into the flow tube.” Id. at 7:11–12.
`
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`Elson is titled “System for Sensing a Characteristic of
`Fluid Flowing to or from a Body.” The system includes a
`conduit with two ends and a flow passage between them.
`Elson 1:63–67. Elson’s system includes a probe for sensing
`a desired characteristic, such as temperature or pressure
`or characteristics that can be determined by an optical
`scan. Id. at 1:56–2:2.
`Barker is titled “Fluid Temperature Sensor.” Barker’s
`system has a flow-through housing. Barker 1:52–55. The
`system also has a through lumen for conducting fluid. Id.
`at 1:64–66. Further, an enclosure projects transversely
`into the lumen. Id. at 1:66–68. A sensor may be installed
`in the enclosure to measure temperature. Id. at 2:2–5.
`The Board made an initial finding that Elson and
`Barker were analogous art to the ’957 patent, rejecting
`Kamstrup’s argument to the contrary. Axioma, 2021 WL
`1235790, at *19. The Board explained that they were at
`least in the same field of endeavor as the ’957 patent be-
`cause they were directed to fluid flow and fluid flow char-
`acteristics. Id. Additionally, the Board found that Elson
`and/or Barker disclosed the claim scope introduced in
`claims 6 and 8. Id. at *16–19.
`Kamstrup argued that Elson and Barker did not dis-
`close the “measurement tube element” of claim 6 because
`the limitation was restricted to elements measuring flow,
`whereas Elson and Barker disclosed other types of sensors.
`Id. at *17–18. The Board rejected this argument, explain-
`ing that the ’957 patent did not limit the measurement
`tube element to a particular type of sensor. Id.
`Kamstrup also argued that Elson and Barker did not
`disclose the protrusions or indentions that claim 6 re-
`quires. Id. at *18. Kamstrup argued that the protrusions
`or indentions must be on or part of the flow section wall
`and integral with the wall’s inside surface. Id.
`
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`KAMSTRUP A/S v. AXIOMA METERING UAB
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`The Board disagreed, explaining that—according to the
`plain language of claim 6—the limitations are satisfied if
`the protrusions or indentions are within the bounds of the
`flow section and can engage with the measurement tube
`element. Id. The Board found that Elson discloses a re-
`ceiver (a protrusion) attached to a tube section (a flow
`tube). Id. The Board also explained that the receiver is
`located inside the tube section and accommodates a probe
`(a measurement tube element). Id.
`Finally, the Board found that a person of ordinary skill
`in the art would have been motivated to modify Ueki with
`Elson and/or Barker. Id. at *19. Specifically, the Board
`credited Axioma’s expert testimony that it was common to
`measure temperature when measuring flow. Id.
`Kamstrup appealed the Board’s claim constructions
`and patentability determinations. We have jurisdiction
`under 28 U.S.C. § 1295(a)(4)(A).
`STANDARD OF REVIEW
`We review the Board’s legal conclusions de novo and its
`factual findings for substantial evidence. See ACCO
`Brands Corp. v. Fellowes, Inc., 813 F.3d 1361, 1365
`(Fed. Cir. 2016). Substantial evidence is “such relevant ev-
`idence as a reasonable mind might accept as adequate to
`support a conclusion.” In re Gartside, 203 F.3d 1305, 1312
`(Fed. Cir. 2000) (citations omitted).
`Claim construction is ultimately a question of law that
`may be based on underlying factual findings. Teva
`Pharms. U.S.A., Inc. v. Sandoz, Inc., 574 U.S. 318, 332–33
`(2015). Thus, we review the Board’s claim constructions de
`novo and review any underlying factual determinations for
`substantial evidence. Wasica Fin. GmbH v. Cont’l Auto.
`Sys., Inc., 853 F.3d 1272, 1278 (Fed. Cir. 2017).
`Anticipation is a question of fact that we review for sub-
`stantial evidence. Blue Calypso, LLC v. Groupon, Inc., 815
`F.3d 1331, 1341 (Fed. Cir. 2016). The Board’s ultimate
`
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`KAMSTRUP A/S v. AXIOMA METERING UAB
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`obviousness determination is a legal conclusion reviewed
`de novo. See In re Cuozzo Speed Techs., LLC, 793 F.3d
`1268, 1280 (Fed. Cir. 2015). The Board’s factual findings
`underlying its obviousness determination are reviewed for
`substantial evidence. Id. (citing Graham v. John Deere Co.,
`383 U.S. 1, 17–18 (1966)).
`DISCUSSION
`Product-by-Process
`Kamstrup argues that the Board erred in construing
`“cast in one piece” as a product-by-process claim element.
`A product-by-process claim is one in which a product is
`claimed, at least in part, by the “process by which it is
`made.” In re Thorpe, 777 F.2d 695, 697 (Fed. Cir. 1985).
`Product-by-process claims “enable an applicant to
`claim an otherwise patentable product that resists defini-
`tion by other than the process by which it is made.” Id. “In
`determining validity of a product-by-process claim, the fo-
`cus is on the product and not the process of making it. That
`is because of the . . . long-standing rule that an old product
`is not patentable even if it is made by a new process.”
`Greenliant Sys., 692 F.3d at 1268 (citations omitted).
`“As we recognized in Amgen, if the process by which a
`product is made imparts ‘structural and functional differ-
`ences’ distinguishing the claimed product from the prior
`art, then those differences ‘are relevant as evidence of no
`anticipation’ although they ‘are not explicitly part of the
`claim.’” Id. (quoting Amgen Inc. v. F. Hoffman-La Roche
`Ltd, 580 F.3d 1340, 1365–67 (Fed. Cir. 2009)). The specifi-
`cation, the prosecution history, and any extrinsic evidence
`may enlighten whether structural and functional differ-
`ences exist. Amgen, 580 F.3d at 1365–67; Purdue Pharma
`L.P. v. Epic Pharma, LLC, 811 F.3d 1345, 1353–54 (Fed.
`Cir. 2016).
`For example, in Amgen, we determined that a district
`court correctly granted JMOL that a prior art reference did
`
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`KAMSTRUP A/S v. AXIOMA METERING UAB
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`not anticipate a product-by-process claim. 580 F.3d at
`1365–67. The claim was directed to a chemical compound
`“purified from mammalian cells grown in culture.” Id. The
`prior art, however, was a similar chemical compound but
`purified from urine. Id.
`We held that the district court correctly found no antic-
`ipation because the evidence showed that the chemical
`compound “purified from mammalian cells grown in cul-
`ture” had different structural and functional differences
`from the prior art. Id. at 1367. The district court correctly
`considered that “the specification and prosecution history
`of the [] patent . . . refer to studies indicating that [the
`claimed chemical compound] had a higher molecular
`weight and different charge than [the prior art] due to dif-
`ferences in carbohydrate composition.” Id. The district
`court also properly considered an expert declaration in the
`prosecution history and trial expert testimony that simi-
`larly evidenced the structural and functional differences
`between the claimed product and prior art. Id.; see also
`Purdue Pharma, 811 F.3d at 1353–54 (finding that the dis-
`trict court did not err in disregarding a product-by-process
`limitation for an obviousness determination where the
`specification and the patentee’s expert testimony evi-
`denced that the process “imparts no structural or func-
`tional differences in the [claimed product] as compared to
`the prior art products”); Greenliant Sys., 692 F.3d at 1271
`(“[The patentee’s] arguments clearly and unmistakably
`represented to the examiner and the Board that [the pro-
`cess] . . . imparted the distinct structural characteristics
`upon [the patentee’s] claimed [product].”).
`Turning to this case, the first question is whether the
`Board correctly determined that “cast in one piece” is a
`product-by-process claim element. Here, the claim lan-
`guage confirms that it is. See Amgen, 580 F.3d at 1367
`(“[B]y its plain terms, claim 1 of the [] patent claims a prod-
`uct with a [process] limitation.”). The claim describes “a
`monolithic polymer structure being cast in one piece.” ’957
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`patent at 6:40–42. On its face, the claim element claims a
`process because it describes the structure “being” cast in a
`particular way. See Greenliant Sys., 692 F.3d at 1264–65
`(product-by-process claim elements recited a product “be-
`ing formed” a certain way).
`Kamstrup argues that “[t]he mere mention of a process
`in a claim limitation does not automatically convert that
`limitation into a process limitation.” Appellant’s Br. 31.
`While that may be true, Kamstrup does not explain why
`we should disregard the fact that the claims recite a pro-
`cess here. Nor does Kamstrup point to disclosure in the
`specification that describes structure for the term. Instead,
`Kamstrup relies on disclosure discussing the fabrication
`process for the device—further support that this is a prod-
`uct-by-process claim element. Id. at 21–23 (quoting ’957
`patent at 2:6–15) (emphasis added) (The “flow me-
`ter . . . can be fabricated with a reduced number of steps
`compared to existing meters, since only a single step is
`used to form the monolithic polymer structure . . . . [A] flow
`meter housing which has a straight flow section separated
`from a cavity in a manner where a part of the wall of the
`flow section is part of the inside of the cavity [] can . . . be
`cast in a single step . . . .”). We therefore conclude that the
`Board did not err in finding that “cast in one piece” is a
`product-by-process claim element.
`The second question is whether the product-by-process
`claim element imparts patentable weight to the claims.
`Greenliant Sys., 692 F.3d at 1268. We conclude that it does
`not.
`Kamstrup argues that the Board erred in finding that
`there are no functional or structural differences between
`polymer structures cast in a single mold versus multiple
`molds. Appellant’s Br. 32–34. Kamstrup states that “var-
`ious structures . . . cannot be cast in a single mold using
`conventional die cast injection molding technologies.” Id.
`at 34 (emphasis added); Reply 24–26.
`
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`KAMSTRUP A/S v. AXIOMA METERING UAB
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`First, even if true, Kamstrup has not identified func-
`tional and structural differences between a structure “cast
`in one piece” and a structure manufactured using another
`method. Rather, the argument is merely that the claim el-
`ement describes a manufacturing method with some inher-
`ent restrictions. Further, Kamstrup has not identified
`disclosure in the specification or prosecution history or ex-
`trinsic evidence evidencing structural and functional dif-
`ferences.
`Second, the alleged structural and functional differ-
`ence that Kamstrup identifies is detached from the claims.
`The claims state that the structure should be “cast in one
`piece,” not cast in one mold. ’957 patent at 6:40–42 (em-
`phasis added). The Board correctly found that the written
`description “focuses on reducing the number of steps re-
`quired to fabricate the flow meter housing, not on casting
`in a single mold.” Axioma, 2021 WL 1235790, at *7 (citing
`’957 patent at 1:55–57, 2:6–9). While certain figures of the
`written description, namely Figures 5A and 5B, depict a
`single mold, the Board correctly found that those embodi-
`ments are narrower than the claims—which do not require
`use of a single mold—and correctly declined to import nar-
`rower limitations from the specification to the claims. Id.
`Substantial evidence also supports the Board’s finding that
`the extrinsic evidence does not exclusively show that “cast
`in one piece” means “cast in one mold.” Id. at *8.
`Consequently, we hold that because Kamstrup fails to
`show that the process claimed imparts “structural and
`functional differences” distinguished from the prior art, it
`is not entitled patentable weight. Greenliant Sys., 692 F.3d
`at 1268.
`
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`Other Claim Elements
`Kamstrup argues that the Board erred in construing
`“cavity separated from the flow tube.” In particular, Kam-
`strup argues that this term means that the cavity cannot
`surround the flow tube.
`Kamstrup has three main arguments for this term.
`First, Kamstrup argues that the plain meaning of “sepa-
`rated from” does not encompass “surrounding.” Appel-
`lant’s Br. 17–18; Reply 1–2. Second, Kamstrup argues that
`no embodiment discloses the cavity completely surround-
`ing the flow tube. Appellant’s Br. 19; Reply 11–16. Finally,
`Kamstrup argues that the claim limitation would not be
`enabled if it included a cavity that surrounds the flow tube.
`Appellant’s Br. 19–20; Reply 8.
`Kamstrup’s proposed construction reads in a negative
`limitation that is at odds with the claim language. The
`claims state that the flow section, defined by the flow tube,
`and the cavity “ha[ve] a shared wall area.” ’957 patent at
`6:48–49. We see nothing in the claim language that pro-
`hibits the cavity from surrounding the flow tube.
`The specification also does not otherwise limit the
`claim language, even if no embodiment discloses the cavity
`completely surrounding the flow tube. We reject Kam-
`strup’s argument because it reads in a limitation from non-
`limiting embodiments. See Phillips v. AWH Corp., 415
`F.3d 1303, 1323 (Fed. Cir. 2005) (en banc) (“[A]lthough the
`specification often describes very specific embodiments of
`the invention, we have repeatedly warned against confin-
`ing the claims to those embodiments.”).
`Finally, we disagree with Kamstrup that the claim con-
`struction is incorrect because a design where the cavity
`surrounds the flow tube would require the flow tube to be
`manufactured separately from the housing. This is irrele-
`vant because it assumes that the claims require the hous-
`ing “being cast in one piece.” As discussed above, this claim
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`KAMSTRUP A/S v. AXIOMA METERING UAB
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`element does not impart patentable weight and is therefore
`not a basis for limiting “cavity separated from the flow
`tube.” Thus, we find that the Board did not err in constru-
`ing “cavity separated from the flow tube.”
`Kamstrup argues that the Board erred in rejecting two
`proposed constructions concerning claim 6. Both argu-
`ments fail for reasons similar to those discussed above.
`First, Kamstrup asserts that the protrusions and
`indentions of claim 6 must be integral with the flow section
`and made of polymer. Appellant’s Br. 45; Reply 32–35.
`This construction is incorrect because dependent claim 6
`states that the “flow section has one or more protrusions
`or indentions at the inside of the flow section.” ’957 patent
`at 7:3–7 (emphasis added). It does not require Kamstrup’s
`additional limitation that they be made of the polymer.
`Kamstrup has not identified disclosure that supports
`its proposed limitation. Kamstrup does point to the
`specification that states that the “housing may be provided
`with one or more protrusions or indentions.” Reply 34
`(quoting ’957 patent at 5:24–30). But, this does not state
`that the housing “must be” formed with the claimed
`monolithic polymer structure. Id.; see also Appellant’s Br.
`45.
`Second, Kamstrup argues that the “measurement tube
`element” of claim 6 must be an ultrasonic measurement el-
`ement and cannot be a temperature sensor. Appellant’s Br.
`46–49; Reply 32 n.80. Again, we reject Kamstrup’s argu-
`ment because it limits the claim to a non-limiting embodi-
`ment that describes ultrasonic reflectors. In fact, the
`specification does disclose implementing temperature sen-
`sors into the flow meter. See ’957 patent at 5:38–46. In
`addition, the claim language itself distinguishes the “meas-
`urement tube element” and the “ultrasonic reflector ar-
`rangement.” ’957 patent at 7:3–7 (“[The] protrusions or
`indentions . . . serv[e] to engage with an associated meas-
`urement
`tube element or an ultrasonic reflector
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`arrangement.”). This indicates that the claim covers dif-
`ferent measurement devices and is not limited to one or
`more ultrasonic reflectors as Kamstrup argues. We there-
`fore find that the Board did not err in its claim construction
`concerning claim 6.
`
`Patentability
`We next review whether the Board erred in its deter-
`mination that the claims are anticipated or obvious. First,
`we address Kamstrup’s threshold argument that the Board
`erred in determining that Elson and Barker are analogous
`art because they relate to “medical devices for thermodilu-
`tion.” Appellant’s Br. IV(C)(2). In support, Kamstrup cites
`disclosure in the ’957 patent explaining that it relates to
`ultrasonic flow meter housing. Id. at 40–41.
`The Board determined that Elson and Barker are anal-
`ogous art because they are directed to sensing or measur-
`ing fluid flow and fluid flow characteristics such as
`temperature. Axioma, 2021 WL 1235790, at *19. As dis-
`cussed, the ’957 patent is directed to flow meters that in-
`clude different types of sensors. See generally ’957 patent
`at 1:25–57, 2:51–58, 5:38–46. Elson discloses a “system for
`sensing a characteristic of fluid flowing” and includes a
`probe for sensing a desired characteristic, such as temper-
`ature. Elson abstract, 1:56–2:2. Barker is directed to a
`fluid temperature sensor, having a through lumen for con-
`ducting fluid. Barker abstract, 1:64–66. Thus, substantial
`evidence supports the Board’s determination that Elson
`and Barker are analogous art because they are at least in
`the same field of endeavor as the ’957 patent. See In re
`Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004) (citation omit-
`ted) (“The identification of analogous prior art is a factual
`question.”).
`Kamstrup’s remaining challenges to the Board’s pa-
`tentability determinations rise and fall with Kamstrup’s
`proposed claim constructions. Specifically, Kamstrup as-
`serts that the Board’s erroneous claim constructions
`
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`Case: 21-1923 Document: 28 Page: 16 Filed: 08/12/2022
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`16
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`KAMSTRUP A/S v. AXIOMA METERING UAB
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`caused the Board to find incorrectly that the references dis-
`closed the disputed claim elements.2 We conclude that
`Kamstrup’s patentability challenges necessarily fail as
`they rely on the court accepting its proposed claim con-
`structions.
`As discussed above, after properly construing the
`claims, the Board found claims 1, 2, 5, 7, 9, and 11–13 an-
`ticipated by Ueki because it disclosed every limitation. The
`Board properly rejected Kamstrup’s arguments that Ueki
`did not disclose certain limitations as Kamstrup’s argu-
`ments were premised on its incorrect claim constructions.
`Thus, we hold that the Board’s decision that Ueki antici-
`pates those claims is supported by substantial evidence.
`The Board also found claims 3, 4, 6, 8, 10, 14, and 15
`obvious over Ueki and various secondary references. The
`Board found that a person of ordinary skill in the art would
`have been motivated to modify the references, crediting Ax-
`ioma’s expert testimony. Again, the Board correctly re-
`jected Kamstrup’s arguments that are conditioned on
`incorrect claim constructions. Kamstrup does not further
`challenge, and we therefore do not consider, whether the
`
`2 See, e.g., Appellant’s Br. 35–36 (asserting that Ueki
`does not disclose the limitation of a “cavity separated from
`the flow tube” because Ueki’s cavity “completely sur-
`rounds” its flow tube section); id. at 37–38 (arguing that
`Ueki does not disclose the “being cast in one piece” claim
`element); id. at 44–46 (asserting that Elson and Barker do
`not disclose the “protrusions or indentions” of claim 6 be-
`cause Elson’s and Barker’s protrusions or indentions are
`not integral with the flow section and made of polymer); id.
`at 46–49 (stating that Elson and Barker do not render
`claim 6 obvious because it requires a “measurement tube
`element” and the references only disclose temperature sen-
`sors); id. 49–50 (“[The Board’s] conclusion[s] [are] premised
`on the erroneous claim constructions . . . .”).
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`Case: 21-1923 Document: 28 Page: 17 Filed: 08/12/2022
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`17
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`Board correctly identified the references or found a motiva-
`tion to combine.
`
`CONCLUSION
`For the foregoing reasons, we affirm the Board’s final
`written decision. We have considered Kamstrup’s remain-
`ing arguments and find them unpersuasive.
`AFFIRMED
`COSTS
`
`No costs.
`
`