2018 Clean Working Version 2017-3-15 aipla model Patent Jury Instructions

Obviousness

Practice Note: Obviousness is a mixed question of fact and law. Failing to move for judgment as a matter of law may waive the issue of obviousness on an appeal. Careful consideration should be given to the Court’s and the jury’s respective roles in determining this issue and the jury should be instructed accordingly.

7.0 Obviousness

7.0.1 Obviousness (Pre-AIA)

[The Defendant] contends that claim(s) [number(s)] of the [abbreviated patent number(s)] patent(s) [[is] [are]] invalid because the claimed invention(s) [[is] [are]] “obvious.”

A claimed invention is invalid as “obvious” if it would have been obvious to a person of ordinary skill in the art of the claimed invention at the time the invention was invented. Unlike anticipation, which allows consideration of only one item of prior art, obviousness may be shown by considering one or more than one item of prior art.

In deciding obviousness, you must avoid using hindsight; that is, you should not consider what is known today or what was learned from the teachings of the patent. You should not use the patent as a road map for selecting and combining items of prior art. You must put yourself in the place of a person of ordinary skill in the art at the time the invention was invented.

The following factors must be evaluated to determine whether [the Defendant] has established that the claimed invention(s) is obvious:

1. 
   the scope and content of the prior art relied upon by [the Defendant];
   
2. 
   the differences, if any, between each claim of the [abbreviated patent number] patent that [the Defendant] contends is obvious and the prior art;
   
3. 
   the level of ordinary skill in the art at the time the invention of the [abbreviated patent number] patent was made; and
   
4. 
   additional considerations, if any, that indicate that the invention was obvious or not obvious.
   

Each of these factors must be evaluated, although they may be analyzed in any order, and you must perform a separate analysis for each of the claims.

[The Defendant] must prove by clear and convincing evidence that the invention would have been obvious. Again, you must undertake this analysis separately for each claim that [the Defendant] contends is obvious.

I will now explain each of the four factors in more detail.

Microsoft Corp. v. i4i Ltd. P’ship, 131 S. Ct. 2238, 2251-52 (2011); KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 405 and 421 (2007); Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966); Otsuka Pharm. Co., Ltd. v. Sandoz, Inc., 678 F.3d 1280, 1296 (Fed. Cir. 2012); Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1161-62 (Fed. Cir. 2007); Ruiz v. A.B. Chance Co., 234 F.3d 654, 662-63 (Fed. Cir. 2000); Arkies Lures, Inc. v. Gene Larew Tackle, Inc., 119 F.3d 953, 955 (Fed. Cir. 1997); Ryko Mfg. Co. v. Nu-Star, Inc., 950 F.2d 714, 716 (Fed. Cir. 1991); Nutrition 21 v. U.S., 930 F.2d 867, 871 n.2 (Fed. Cir. 1991); Newell Cos. v. Kenney Mfg. Co._, 864 F.2d 757, 764-784 (Fed. Cir. 1988); Structural Rubber Prods. Co. v. Park Rubber Co., 749 F.2d 707, 718-19 (Fed. Cir. 1984); Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1538-40 (Fed. Cir. 1983).

7.0.2 Obviousness (Post-AIA)

[The Defendant] contends that claim(s) [number(s)] of the [abbreviated patent number(s)] patent(s) [[is] [are]] invalid because the claimed invention(s) [[is] [are]] “obvious.”

A claimed invention is invalid as “obvious” if it would have been obvious to a person of ordinary skill in the art of the claimed invention before the effective filing date of the [abbreviated patent number] patent. Unlike anticipation, which allows consideration of only one item of prior art, obviousness may be shown by considering one or more than one item of prior art.

In deciding obviousness, you must avoid using hindsight; that is, you should not consider what is known today or what was learned from the teachings of the patent. You should not use the patent as a road map for selecting and combining items of prior art. You must put yourself in the place of a person of ordinary skill in the art before the effective filing date.

The following factors must be evaluated to determine whether [the Defendant] has established that the claimed invention(s) is obvious:

1. 
   the scope and content of the prior art relied upon by [the Defendant];
   
2. 
   the differences, if any, between each claim of the [abbreviated patent number] patent that [the Defendant] contends is obvious and the prior art;
   
3. 
   the level of ordinary skill in the art at the time the invention of the [abbreviated patent number] patent was made; and
   
4. 
   additional considerations, if any, that indicate that the invention was obvious or not obvious.
   

Each of these factors must be evaluated, although they may be analyzed in any order, and you must perform a separate analysis for each of the claims.

[The Defendant] must prove by clear and convincing evidence that the invention would have been obvious. Again, you must undertake this analysis separately for each claim that [the Defendant] contends is obvious.

I will now explain each of the four factors in more detail.

35 U.S.C. § 103 (post-AIA).

7.1 The First Factor: Scope and Content of the Prior Art

In deciding obviousness, the prior art includes the following items received into evidence during the trial:

[LIST PRIOR ART STIPULATED TO BY THE PARTIES].

[IF PARTIES DISPUTE WHETHER SOMETHING IS PRIOR ART, USE THE FOLLOWING]. You must determine what is the prior art that may be considered in determining whether the [abbreviated patent number] patent is obvious. A prior art reference may be considered if it discloses information designed to solve any problem or need addressed by the patent or if the reference discloses information that has obvious uses beyond its main purpose that a person of ordinary skill in the art would reasonably examine to solve any problem or need addressed by the patent.

[ADD INSTRUCTIONS ON PRIOR ART CONTENTIONS, E.G., PUBLICATION AND ON-SALE BAR, AND INHERENCY FROM THE SECTIONS THAT FOLLOW, IF RELEVANT:]

Practice Note: “If the PTO did not have all material facts before it, . . . the challenger’s burden to persuade the jury of its invalidity defense by clear and convincing evidence may be easier to sustain.” Microsoft Corp. v. i4i Ltd. P’ship, 131 S. Ct. 2238, 2251 (2011). It may also be appropriate to instruct the jury here “to evaluate whether the evidence before it is materially new [as opposed to previously considered during examination by the PTO], and if so, to consider that fact when determining whether an invalidity defense has been proved by clear and convincing evidence.” Id. On this point, the Supreme Court has stated that “a jury instruction on the effect of new evidence can, and when requested, most often should be given.” Id. Alternatively, this Instruction may be inserted in a separate Instruction on the consideration of “prior art.” See Sec. 5.1.

Microsoft Corp. v. i4i Ltd. P’ship, 131 S. Ct. 2238, 2251-52 (2011); KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007); Ruiz v. A.B. Chance Co., 234 F.3d 654, 664-65 (Fed. Cir. 2000); Wang Labs., Inc. v. Toshiba Corp., 993 F.2d 858, 864 (Fed. Cir. 1993); In re Clay, 966 F.2d 656, 658-59 (Fed. Cir. 1992); In re Wood, 599 F.2d 1032, 1036-37 (C.C.P.A. 1979).

7.2 The Second Factor: Differences Between the Claimed Invention and the Prior Art

7.2.1 The Second Factor: Differences Between the Claimed Invention and the Prior Art (Pre-AIA)

You should analyze whether there are any relevant differences between the prior art and the claimed invention from the view of a person of ordinary skill in the art at the time of the invention. Your analysis must determine the impact, if any, of such differences on the obviousness or nonobviousness of the invention as a whole, and not merely some portion of it.

Practice Note: If one or more elements of the claim are alleged by the Defendant to be inherent in a single prior art reference, the jury will need to be instructed on inherency. See Sec. 6.0. Care should be taken to limit this Instruction as appropriate to the evidence admitted in the case and to make this Instruction as clear as possible. This Instruction should be given only if the issue is properly raised by Defendant and adequately supported by the evidence.

[In comparing the scope and content of each prior art reference to a patent claim, you may find that inherency may supply a claim element that is otherwise missing from the explicit disclosure of a prior art reference. The inherent presence of an element so found by you may be used in your evaluation of whether the claimed invention would have been obvious in view of the prior art. But, to rely on inherency to establish the existence of a claim element in the prior art in an obviousness analysis, that element necessarily must be present in, or the natural result of, the combination of elements explicitly disclosed by the prior art. Inherency may not be established by probabilities or possibilities. The mere fact that a certain thing may result from an explicit disclosure is not sufficient to find inherency. However, if the disclosure is sufficient to show that the natural result flowing from the explicit disclosure would result in the claim element in question, inherency may be found. Something inherent from the explicit disclosure of the prior art must be limited when applied in an obviousness analysis and used only when the inherent element is the natural result of the combination of prior art elements explicitly disclosed. An important consideration when determining whether a reference inherently discloses a previously unknown property of something is whether that property is unexpected. Although all properties of something are inherently part of that thing, if a property is found to be unexpectedly present, then the property may be nonobvious.]

In analyzing the relevance of the differences between the claimed invention and the prior art, you do not need to look for precise teaching in the prior art directed to the subject matter of the claimed invention. You may take into account the inferences and creative steps that a person of ordinary skill in the art would have employed in reviewing the prior art at the time of the invention. For example, if the claimed invention combined elements known in the prior art and the combination yielded results that were predictable to a person of ordinary skill in the art at the time of the invention, then this evidence would make it more likely that the claim was obvious. On the other hand, if the combination of known elements yielded unexpected or unpredictable results, or if the prior art teaches away from combining the known elements, then this evidence would make it more likely that the claim that successfully combined those elements was not obvious.

Importantly, a claim is not proved obvious merely by demonstrating that each of the elements was independently known in the prior art. Most, if not all, inventions rely on building blocks long-known, and claimed discoveries almost of necessity will likely be combinations of what is already known. Therefore, you should consider whether a reason existed at the time of the invention that would have prompted a person of ordinary skill in the art in the relevant field to combine the teachings in the way the claimed invention does. The reason could come from the prior art, the background knowledge of one of ordinary skill in the art, the nature of any problem or need to be addressed, market demand, or common sense. If you find that a reason existed at the time of the invention to combine the elements of the prior art to arrive at the claimed invention, and there would have been a reasonable expectation of success for doing so, this evidence would make it more likely that the claimed invention was obvious. Similarly, you may consider the possibility that a reference teaches away from the claimed invention. A reference teaches away from the invention when a person of ordinary skill in the art at the time of the invention reading the reference would have been discouraged from following the path set out in the claimed invention, or would be led in a different direction than the claimed invention. A reference that merely expresses a general preference for an alternative invention but does not criticize, discredit, or otherwise discourage investigating the claimed invention does not teach away. You may also consider whether the problem or need was known, the possible approaches to solving the problem or addressing the need were known and finite, and the solution was predictable through use of a known option.

You must undertake this analysis separately for each claim that [the Defendant] contends is obvious.

KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 420-22 (2007); Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966); PAR Pharm., Inc. v. TWI Pharm., Inc., 773 F.3d 1186, 1193 (Fed. Cir. 2014); In re Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent Litig., 676 F.3d 1063, 1068-69 (Fed. Cir. 2012); Procter & Gamble Co. v. Teva Pharms. USA, Inc., 566 F.3d 989, 994 (Fed. Cir. 2009); Abbott Labs. v. Sandoz, Inc., 544 F.3d 1341, 1351 (Fed. Cir. 2008); Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1361 (Fed. Cir. 2007); DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1360 (Fed. Cir. 2006); Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1536-37 (Fed. Cir. 1983); Medtronic, Inc., v. Cardiac Pacemakers, Inc., 721 F.2d 1563, 1567-68 (Fed. Cir. 1983). Inherency: Honeywell Int’l Inc. v. Mexichem Amanco Holding, 865 F.3d 1348, 1355 (Fed. Cir. 2017); Knauf Insulation, Inc. v. Rockwood Int’l, 680 Fed. Appx. 956, 960 (Fed. Cir. 2017); PAR Pharm., Inc. v. TWI Pharms., Inc., 773 F.3d 1186, 1194-1196 (Fed. Cir. 2014); Alcon Research, Ltd. v. Apotex Inc., 687 F.3d, 1362 (Fed. Cir. 2012); In re Kubin, 561 F.3d 1351, 1357 (Fed. Cir. 2009). Teaching away: United States v. Adams, 383 U.S. 39, 52 (1966); Millennium Pharms., Inc. v. Sandoz Inc., 862 F.3d 1356, 1366 (Fed. Cir. 2017); Meiresonne v. Google, Inc., 849 F.3d 1379, 1382 (Fed. Cir. 2017); In re Urbanski, 809 F.3d 1237, 1244 (Fed. Cir. 2016); In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994).

7.2.2 The Second Factor: Differences Between the Claimed Invention and the Prior Art (Post-AIA)

You should analyze whether there are any relevant differences between the prior art and the claimed invention from the view of a person of ordinary skill in the art before the effective filing date of the patent. Your analysis must determine the impact, if any, of such differences on the obviousness or nonobviousness of the invention as a whole, and not merely some portion of it.

Practice Note: If one or more elements of the claim are alleged by the Defendant to be inherent in a single prior art reference, the jury will need to be instructed on inherency. See Sec. 6.0. Care should be taken to limit this Instruction as appropriate to the evidence admitted in the case and to make this Instruction as clear as possible. This Instruction should be given only if the issue is properly raised by Defendant and adequately supported by the evidence.

[In comparing the scope and content of each prior art reference to a patent claim, you may find that inherency may supply a claim element that is otherwise missing from the explicit disclosure of a prior art reference. The inherent presence of an element so found by you may be used in your evaluation of whether the claimed invention would have been obvious in view of the prior art. But, to rely on inherency to establish the existence of a claim element in the prior art in an obviousness analysis, that element necessarily must be present in, or the natural result of, the combination of elements explicitly disclosed by the prior art. Inherency may not be established by probabilities or possibilities. The mere fact that a certain thing may result from an explicit disclosure is not sufficient to find inherency. However, if the disclosure is sufficient to show that the natural result flowing from the explicit disclosure would result in the claim element in question, inherency may be found. Something inherent from the explicit disclosure of the prior art must be limited when applied in an obviousness analysis and used only when the inherent element is the natural result of the combination of prior art elements explicitly disclosed. An important consideration when determining whether a reference inherently discloses a previously unknown property of something is whether that property is unexpected. Although all properties of something are inherently part of that thing, if a property is found to be unexpectedly present, then the property may be nonobvious.]
In analyzing the relevance of the differences between the claimed invention and the prior art, you do not need to find a precise teaching in the prior art directed to the subject matter of the claimed invention. You may take into account the inferences and creative steps that a person of ordinary skill in the art would have employed in reviewing the prior art before the effective filing date of the patent. For example, if the claimed invention combined elements known in the prior art and the combination yielded results that were predictable to a person of ordinary skill in the art before the effective filing date of the patent, then this evidence would make it more likely that the claim was obvious. On the other hand, if the combination of known elements yielded unexpected or unpredictable results, or if the prior art teaches away from combining the known elements, then this evidence would make it more likely that the claim that successfully combined those elements was not obvious.

Importantly, a claim is not proved obvious merely by demonstrating that each of the elements was independently known in the prior art. Most, if not all, inventions rely on building blocks long-known, and claimed discoveries almost of necessity will likely be combinations of what is already known. Therefore, you should consider whether a reason existed before the effective filing date of the patent that would have prompted a person of ordinary skill in the art in the relevant field to combine the teachings in the way the claimed invention does. The reason could come from the prior art, the background knowledge of one of ordinary skill in the art, the nature of any problem or need to be addressed, market demand, or common sense. If you find that a reason existed before the effective filing date of the patent to combine the elements of the prior art to arrive at the claimed invention, and there would have been a reasonable expectation of success from doing so, this evidence would weigh in favor of a finding that the claimed invention was obvious. Similarly, you may consider the possibility that a reference teaches away from the claimed invention. A reference teaches away from the invention when a person of ordinary skill in the reading the reference before the effective filing date of the patent would have been discouraged from following the path set out in the claimed invention, or would be led in a different direction than the claimed invention. A reference that merely expresses a general preference for an alternative invention but does not criticize, discredit, or otherwise discourage investigating the claimed invention does not teach away. Again, you must undertake this analysis separately for each claim that [the Defendant] contends is obvious.

You may also consider whether the problem or need was known, the possible approaches to solving the problem or addressing the need were known and finite, and the solution was predictable through use of a known option.

Interpreting pre-AIA statute: KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 420-22 (2007); Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966); PAR Pharm., Inc. v. TWI Pharm., Inc., 773 F.3d 1186, 1193 (Fed. Cir. 2014); In re Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent Litig., 676 F.3d 1063, 1068-69 (Fed. Cir. 2012); Procter & Gamble Co. v. Teva Pharms. USA, Inc., 566 F.3d 989, 994 (Fed. Cir. 2009); Abbott Labs. v. Sandoz, Inc., 544 F.3d 1341, 1351 (Fed. Cir. 2008); Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1361 (Fed. Cir. 2007); DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1360 (Fed. Cir. 2006); Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1536-37 (Fed. Cir. 1983); Medtronic, Inc. v. Cardiac Pacemakers, Inc., 721 F.2d 1563, 1567-68 (Fed. Cir. 1983). Inherency: Honeywell Int’l Inc. v. Mexichem Amanco Holding, 865 F.3d 1348, 1355 (Fed. Cir. 2017); Knauf Insulation, Inc. v. Rockwood Int’l, 680 Fed. Appx. 956, 960 (Fed. Cir. 2017); PAR Pharm., Inc. v. TWI Pharms., Inc., 773 F.3d 1186, 1194-1196 (Fed. Cir. 2014); Alcon Research, Ltd. v. Apotex Inc., 687 F.3d, 1362 (Fed. Cir. 2012); In re Kubin, 561 F.3d 1351, 1357 (Fed. Cir. 2009). Teaching away: United States v. Adams, 383 U.S. 39, 52 (1966); Millennium Pharms., Inc. v. Sandoz Inc., 862 F.3d 1356, 1366 (Fed. Cir. 2017); Meiresonne v. Google, Inc., 849 F.3d 1379, 1382 (Fed. Cir. 2017); In re Urbanski, 809 F.3d 1237, 1244 (Fed. Cir. 2016); In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994).

7.3 The Third Factor: Level of Ordinary Skill

7.3.1 The Third Factor: Level of Ordinary Skill (Pre-AIA)

The determination of whether a claimed invention is obvious is based on the perspective of a person of ordinary skill in the [pertinent art field]. The person of ordinary skill is presumed to know all prior art that you have determined to be reasonably relevant. The person of ordinary skill is also a person of ordinary creativity that can use common sense to solve problems.

[IF THE PARTIES HAVE AGREED TO THE LEVEL OF ORDINARY SKILL IN THE ART, THEN THE INSTRUCTION SHOULD INCLUDE: “[Plaintiff] and [the Defendant] contend that the level of ordinary skill in the art is [insert proposal]].”

[If the parties have not agreed to the level of ordinary skill in the art, then the instruction should continue as follows:]

When determining the level of ordinary skill in the art, you should consider all the evidence submitted by the parties, including evidence of:

1. 
   the level of education and experience of persons actively working in the field at the time of the invention, including the inventor(s);
   

5. 
   the types of problems encountered in the art at the time of the invention; and
   
6. 
   the sophistication of the technology in the art at the time of the invention, including the rapidity with which innovations were made in the art at the time of the invention.
   

KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 420-22 (2007); Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966); Ruiz v. A.B. Chance Co., 234 F.3d 654, 666-67 (Fed. Cir. 2000); Envtl. Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 696-97 (Fed. Cir. 1983).

7.3.2 The Third Factor: Level of Ordinary Skill (Post-AIA)

The determination of whether a claimed invention is obvious is based on the perspective of a person of ordinary skill in the [pertinent art field]. The person of ordinary skill is presumed to know all prior art that you have determined to be reasonably relevant. The person of ordinary skill is also a person of ordinary creativity that can use common sense to solve problems.

[IF THE PARTIES HAVE AGREED TO THE LEVEL OF ORDINARY SKILL IN THE ART, THEN THE INSTRUCTION SHOULD INCLUDE: “[the Plaintiff] and [the Defendant] contend that the level of ordinary skill in the art is [insert proposal]].”

[IF THE PARTIES HAVE NOT AGREED TO THE LEVEL OF ORDINARY SKILL IN THE ART, THEN THE INSTRUCTION SHOULD CONTINUE AS FOLLOWS].

When determining the level of ordinary skill in the art, you should consider all the evidence submitted by the parties, including evidence of:

1. 
   the level of education and experience of persons actively working in the field before the effective filing date of the patent, including the inventor(s);
   

5. 
   the types of problems encountered in the art before the effective filing date of the patent; and
   
6. 
   the sophistication of the technology in the art before the effective filing date of the patent, including the rapidity with which innovations were made in the art before the effective filing date of the patent.
   

Interpreting pre-AIA statute: KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 420-22 (2007); Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966); Ruiz v. A.B. Chance Co., 234 F.3d 654, 666-67 (Fed. Cir. 2000); Envtl. Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 696-97 (Fed. Cir. 1983).

7.4 The Fourth Factor: Other Considerations

Before deciding the issue of obviousness for each claimed invention, you must also consider certain factors, which may help to determine whether or not the invention would have been obvious. No factor alone is dispositive, and you must consider the obviousness or nonobviousness of the invention as a whole. Certain of these factors include:

Practice Note: Careful consideration should be given to the Court’s role in determining the admissibility of evidence of secondary considerations. In addition, the materiality of the evidence depends on the existence of a nexus between the consideration and the invention as opposed to other factors. Only if the Court determines that there is a sufficient nexus that a consideration is admissible should the jury be instructed on it.

[PROVIDE ONLY THOSE INSTRUCTIONS THAT ARE APPROPRIATE.]

1. 
   Were products covered by the claim commercially successful due to the merits of the claimed invention rather than due to advertising, promotion, salesmanship, or features of the product other than those found in the claim?
   

7. 
   Was there long-felt need for a solution to the problem facing the inventors, which was satisfied by the claimed invention?
   
8. 
   Did others try, but fail, to solve the problem solved by the claimed invention?
   
9. 
   Did others copy the claimed invention?
   
10. 
    Did the claimed invention achieve unexpectedly superior results over the closest prior art?
    
11. 
    Did others in the field, or [the Defendant] praise the claimed invention or express surprise at the making of the claimed invention(s)?
    
12. 
    Did others accept licenses under [abbreviated patent number(s)] patent(s) because of the merits of the claimed invention?
    

Answering all, or some, of these questions “yes” may suggest that the claim was not obvious. Answering all, or some, of these questions “no” may suggest that the claims would have been obvious. These factors are relevant only if there is a connection, or nexus, between the factor and the invention covered by the patent claims. If there is such a connection or nexus, then you must consider the above factors. Even if you conclude that some of the above factors have been established, those factors should be considered along with all the other evidence in the case in determining whether [the Defendant] has proven that the claimed invention would have been obvious.

Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966); United States v. Adams, 383 U.S. 39, 52 (1966); Apple Inc. v. Samsung Elecs. Co., Ltd., 839 F.3d 1034, 1052 (Fed. Cir. 2016); WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1329 (Fed. Cir. 2016); Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 894-95 (Fed. Cir. 1984); Envtl. Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 697 (Fed. Cir. 1983); WL Gore & Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1555-56 (Fed. Cir. 1983); Stratoflex, Inc., v. Aeroquip Corp., 713 F.2d 1530, 1538-39 (Fed. Cir. 1983).

13.