Google LLC v. DDC Technology, LLC — Federal Circuit Affirms PTAB’s Reliance on Copying and Industry Praise to Uphold VR Viewer Patents Against Obviousness Challenge

Background

Google petitioned for inter partes review of three DDC Technology patents—U.S. Patent Nos. 9,420,075, 10,528,199, and 11,093,001—covering a virtual reality viewer that holds a smartphone and includes an input mechanism for interacting with the touchscreen while the phone is enclosed. Google argued various claims were obvious over Japanese Patent Publication JP 3176588 (Kondo) combined with U.S. Patent Application Publication No. 2013/0082963 (Chu). For claim 1 of each of the '075 and '199 patents, the Board found that the Kondo-Chu combination taught each limitation and that a skilled artisan would have been motivated to combine the references. It nevertheless concluded that Google failed to prove those claims obvious because DDC's objective indicia of nonobviousness outweighed Google's evidence of obviousness.

The Board found DDC established copying by Google, weighed heavily toward nonobviousness, and industry praise, given moderate weight. It compared Google's GCV2 VR viewer to DDC's DODOcase VR 1.2 viewer and inventor Patrick Buckley's prototype, finding substantial similarity despite minor differences, and relied on emails from three Google engineers praising Buckley's prototype button. Google appealed, challenging the copying and industry praise analyses, the ultimate obviousness determination, and the Board's constructions of 'disposed on,' 'lever,' 'made from a flexible material,' and 'coupled to.'

The Court’s Holding

The Federal Circuit affirmed the Board's judgments as to all surviving claims: claims 1–12, 14, and 18–20 of the '075 patent; claims 1, 2, 4–6, and 17–26 of the '199 patent; and claims 27 and 28 of the '001 patent. The copying and industry-praise analysis concerned claim 1 of each of the '075 and '199 patents. The court rejected Google's argument that the Board erred by comparing Google's product to DDC's products rather than to the challenged claims, explaining that the Board properly compared the alleged patented devices to the alleged copied product as Iron Grip Barbell requires. The court also upheld the industry praise finding, noting the Board discounted one email as a polite response and accounted for the business relationship when weighing the other two complimentary emails from Google engineers.

On the ultimate obviousness determination, the court emphasized that objective indicia must always be considered when present and that a strong prima facie case does not automatically outweigh weaker secondary considerations, reviewing the ultimate legal conclusion de novo while deferring to the Board's unchallenged factual weight findings. The court also rejected Google's claim-construction and related challenges: 'disposed on' does not encompass connections 'far removed'; 'lever' requires 'a stiff body pivoted on a fulcrum'; the Board did not violate the APA by implicitly construing 'made from a flexible material' because Google had notice and failed to develop its position; and Google forfeited its challenge to the 'coupled to' construction by not raising it below.

Key Takeaways

• Copying requires replication of a specific product, not merely that a competing product falls within the scope of a patent claim.
• Industry praise from a competitor's engineers can support nonobviousness even in a business-relationship context, provided the factfinder accounts for potential bias.
• Objective indicia must be considered when present. Here, the Board had not found Google's obviousness evidence strong or overwhelming; its findings of strong copying evidence and moderately weighted industry praise supported the result.
• The court rejected Google's APA challenge concerning claim 27: the Board had flagged the issue and invited further argument, and Google failed to respond. It distinguished an unexpected change to an already-adopted construction.
• Google forfeited its appellate construction argument concerning claim 28 by failing to develop that position before the Board despite the Board's invitation.

Why It Matters

This decision reinforces the role of objective indicia in the obviousness analysis and confirms that the Board may weigh copying and industry praise heavily even when the petitioner establishes a prima facie case. It also clarifies that the Board may adopt claim constructions in final written decisions without violating the APA when it has flagged the issue, placing the burden on petitioners to develop their positions during the IPR.

The ruling confirms the proper comparison for copying—between the alleged patented and copied products rather than the claims—and shows that praise from a competitor's employees, even in a business context, can be meaningful evidence of nonobviousness. Patent challengers must fully develop claim construction arguments before the Board to avoid forfeiture on appeal.