United States Court of Appeals 

for the Federal Circuit ______________________ 

HUSKY INJECTION MOLDING SYSTEMS LTD.,

Appellant

v.

ATHENA AUTOMATION LTD.,

Cross-Appellant

______________________ 

2015-1726, 2015-1727

______________________ 

Appeals from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. 

IPR2013-00290.

______________________ 

Decided: September 23, 2016

______________________ 

MATTHEW L. CUTLER, Harness, Dickey & Pierce, PLC, 

St. Louis, MO, argued for appellant. 

MARSHALL JOHN SCHMITT, Michael Best & Friedrich, 

LLP, Chicago, IL, argued for cross-appellant. Also represented by GILBERTO EDUARDO ESPINOZA, MARTIN L.

STERN. 

JOSEPH MATAL, Office of the Solicitor, United States 

Patent and Trademark Office, Alexandria, VA, argued for 

intervenor Michelle K. Lee. Also represented by NATHAN 

K. KELLEY, SCOTT WEIDENFELLER. 
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______________________ 

Before LOURIE, PLAGER, and STOLL, Circuit Judges.

Opinion for the court filed by Circuit Judge LOURIE. 

Opinion concurring in part and dissenting in part filed by 

Circuit Judge PLAGER.

LOURIE, Circuit Judge. 

Husky Injection Molding Systems Ltd. (“Husky”) appeals from the U.S. Patent and Trademark Office Patent 

Trial and Appeal Board’s (“the Board”) inter partes review 

decision finding claims 1, 4–16, 18, and 20–22 of U.S. 

Patent 7,670,536 (“the ’536 patent”) anticipated. Athena 

Automation Ltd. v. Husky Injection Molding Sys. Ltd., No. 

2013-00290, 2014 WL 5454543, at *23 (P.T.A.B. Oct. 23, 

2014) (“Final Written Decision”). Athena Automation Ltd. 

(“Athena”) cross-appeals from the Board’s decision finding

claims 2, 3, 17, and 19 of the ’536 patent not anticipated. 

Athena Automation Ltd. v. Husky Injection Molding Sys. 

Ltd., No. 2013-00290 (P.T.A.B. Feb. 23, 2015) (decision on 

rehearing); see Joint App. (“J.A.”) 56–65. For the reasons 

that follow, we dismiss Husky’s appeal for lack of jurisdiction; we vacate the Board’s decision on incorporation by 

reference and its finding of no anticipation with respect to 

claims 2, 3, 17, and 19; and we remand for further consideration of those latter claims. 

BACKGROUND

The ’536 patent discloses a molding machine having a 

clamp assembly comprising, inter alia, a stationary platen 

120, a movable platen 122, tie bars 121, tie bar locks 130 

that couple the tie bars to the movable platen, and clamp 

actuators 128 that supply a clamping force to the tie bars. 

’536 patent col. 8 l. 58–col. 9 l. 46. Figure 2a, reproduced 

below, depicts the clamp assembly.
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Id. fig.2a. When the two platens, each attached to a mold 

support structure, 124, 126, are brought together, a mold 

cavity is created “in which a molded article may be molded . . . once the extruder 104 injects, under pressure, the 

injectable molding material into the mold cavity.” Id. col. 

9 ll. 6–10; id. col. 9 ll. 20–24. 

The claims of the ’536 patent specifically recite a lock 

and a method for using that lock to couple the tie bars 121 

to the movable platen 122.1 Id. col. 9 ll. 29–31. The lock 

 

1 Claim 1 represents the product claims, ’536 patent 

col. 16 ll. 12–27, and claim 18 represents the method 

claims, id. col. 18 ll. 6–17. Both are reproduced below. 

1. A lock of a molding system having a rod and a 

platen, the lock comprising:

a lock member associated with the rod 

that is movable between a clamped position and a released position by a clamp assembly; and 

a complementary lock member associated 

with the platen; the lock member and the 
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has two interlocking components, one associated with the 

tie bar (lock member 510) and one with the platen (complementary lock member 512). Id. col. 11 ll. 55–58; id. col. 

 

complementary lock member cooperatively 

operable to move between a lockable condition and an unlockable condition; wherein

the complementary lock member is engagable with the lock member within a relatively lower flex zone of the platen; 

the relatively lower flex zone of the platen 

being a 

portion of the platen adjacent to the rod 

and having a flex that is lower relative to 

a relatively higher flex zone of the platen 

also adjacent to the rod. 

18. A method of actuating a lock of a molding system having a rod that is movable between a 

clamped position and a released position by a 

clamp assembly and a platen, the method comprising:

engaging a lock member associated with 

the rod with a complementary lock member associated with the platen at a position located proximate to a relatively 

lower flex zone of the platen;

the relatively lower flex zone of the platen 

being a 

portion of the platen adjacent to the rod 

and having a flex that is lower relative to 

a relatively higher flex zone of the platen 

also adjacent to the rod. 
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11 l. 67–col. 12 l. 3. The complementary lock member 512 

comprises a sleeve 230 rotatably mounted to a bore (hole) 

in the corner of the movable platen, which receives tie rod 

121 and its lock member 510. Id. col. 12 ll. 6–21. The two 

lock members engage, and the teeth of each lock member 

align, when sleeve 230 is rotated. Id. As shown below, 

Figure 5b reflects the unlockable condition, and Figure 6b 

reflects the lockable condition. 

Id. fig.5b, fig.6b. Once the two lock members engage, the 

clamp on the stationary platen applies a clamping force, 

locking the two platens together and assembling the mold. 

Id. col. 13 ll. 12–21.

Husky’s former owner and president (“Schad”) is also 

a co-inventor of the ’536 patent. In 2007, Schad assigned 

the ’536 patent to Husky. Shortly thereafter, Schad sold 

Husky to a private equity group, and left to form Athena. 

In 2012, Athena filed a petition for inter partes review at 

the Board, challenging the patentability of all 22 claims in 

the ’536 patent. Athena asserted, inter alia, that various

claims of the ’536 patent were anticipated either by U.S. 
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Patent Application 2004/0208950 (“Glaesener”) in combination with its incorporation by reference of U.S. Patent 

5,753,153 (“Choi”) (together, “Glaesener/Choi”), or by U.S. 

Patent 5,417,913 (“Arend”). 

Husky filed a preliminary response, arguing only that 

assignor estoppel barred Athena from filing a petition for 

review. The Board rejected that argument and instituted 

review. Athena Automation Ltd. v. Husky Injection Molding Sys. Ltd., No. 2013-00290, 2013 WL 8595976, at *2, *7 

(P.T.A.B. Oct. 25, 2013) (“Institution Decision”). It first

reasoned that the equitable doctrine, “a defense to certain 

claims of patent infringement,” id. at *7 (quoting Semiconductor Energy Lab. Co. v. Nagata, 706 F.3d 1365, 1369 

(Fed. Cir. 2013)), does not provide for an exception to the 

otherwise broad statutory mandate that “a person who is 

not the owner of a patent may file with the Office a petition to institute an inter partes review of the patent,” 35 

U.S.C. § 311. The Board further found a comparison to 17 

U.S.C. § 1337(c) instructive, in that Congress provided for 

“all legal and equitable defenses” in an ITC investigation,

but not in inter partes review. Institution Decision at *7. 

In 2014, the Board issued its final written decision. It 

found that claims 1, 4–16, 18, and 20–22 were anticipated 

by Arend, Final Written Decision at *23, and that claims 

2, 3, 17, and 19 were not anticipated by Glaesener/Choi, 

id. at *16–17. With respect to the latter, the Board declined to address whether two paragraphs in Glaesener 

incorporate Choi by reference,2 instead finding that even 

 

2 The first relevant paragraph in Glaesener recites: 

“The tie-bar nuts can be secured to the rear wall 16 by 

any appropriate mechanism, such as the pineapple and 

toothed-ring mechanism described in [Choi].” Glaesener 

¶ 0035 (emphasis added). The second paragraph recites: 

“All cross-referenced patents and application[s] referred 
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assuming sufficient incorporation, the reference combination still fails to teach the recited limitations “in the same 

form and order as listed in the claims.” Id. at *16. Notably, the Board found that Athena failed to explain what 

Glaesener incorporates from Choi, much less how Choi’s 

clamping device would secure the components of Glaesener’s molding machine. Id. at *17. 

Athena requested rehearing of the final decision, and 

the Board granted the request in part. J.A. 64. In doing 

so, the Board expressly addressed incorporation by reference, and found that Athena failed to show that Glaesener 

incorporates any portion of Choi for purposes of anticipation. Specifically, it reasoned that Athena submitted no 

evidence or explanation supporting what a skilled artisan 

would understand the “pineapple and toothed-ring mechanism” in Choi to be, J.A. 60, nor were Choi and Glaesener clear as to what was meant to be incorporated, J.A. 62. 

For that reason only, the Board reaffirmed its finding that 

Athena failed to prove anticipation of claims 2, 3, 17, and 

19. J.A. 63–64. 

Husky timely appealed from the Board’s decision with 

respect to claims 1, 4–16, 18, and 20–22; Athena timely 

cross-appealed from the Board’s decision with respect to 

claims 2, 3, 17, and 19. We have jurisdiction to review the 

Board’s final decision under 28 U.S.C. § 1295(a)(4)(A).

DISCUSSION

I. HUSKY’S APPEAL

Husky’s appeal focuses exclusively on whether assignor estoppel may bar a party from filing a petition for inter 

partes review at the Patent and Trademark Office. Husky 

contends that Athena is in privity with Schad, the assign-

 

to in this specification are hereby incorporated by reference.” Id. ¶ 0049. 
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or of the ’536 patent, and, as such, is estopped from challenging the claims of the ’536 patent. Accordingly, Husky 

continues, the Board acted outside of its statutory authority when it instituted review and found claims 1, 4–16, 18, 

and 20–22 unpatentable as anticipated. As Husky only 

argues that Athena is estopped from seeking inter partes

review, and not that the claims are not anticipated on the 

merits, we consider only the estoppel question. For the 

reasons that follow, we dismiss Husky’s appeal for lack of 

jurisdiction. 

A 

We begin with necessary context. In 2011, Congress

created the inter partes review process, inter alia, as a 

means for the Patent and Trademark Office to efficiently 

review issued patents. Sections 311 through 319 carefully 

describe the requirements of and mechanism for review. 

See 35 U.S.C. §§ 311–319. Of particular importance is 

§ 314(d), which provides that “the determination by the 

Director whether to institute inter partes review under 

this section shall be final and nonappealable.” Id.

§ 314(d) (emphasis added). Since § 314(d)’s inception, we 

have had several opportunities to address whether and to 

what extent it limits our ability to review the institution 

decision. E.g., Achates Reference Publ’g, Inc. v. Apple Inc., 

803 F.3d 652, 657–58 (Fed. Cir. 2015); In re Cuozzo Speed 

Techs., LLC, 793 F.3d 1268, 1273 (Fed. Cir. 2015), aff’d, 

Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131 (2016); 

In re Procter & Gamble Co., 749 F.3d 1376, 1378 (Fed. 

Cir. 2014); In re Dominion Dealer Sols., LLC, 749 F.3d 

1379, 1381 (Fed. Cir. 2014); St. Jude Med., Cardiology 

Div., Inc. v. Volcano Corp., 749 F.3d 1373, 1375 (Fed. Cir.

2014). 

We first held in St. Jude that § 314(d) bars interlocutory review of a decision to deny inter partes review. 749 

F.3d at 1375. In doing so, we characterized § 314(d) as a 

“broadly worded bar on appeal,” and reasoned that such a 
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result comports with 35 U.S.C. §§ 141(c) and 319, which 

only authorize appeals from a final written decision. Id.

at 1375–76; see 35 U.S.C. § 141(c) (“A party to an inter 

partes review . . . who is dissatisfied with the final written 

decision of the [Board] may appeal the Board’s decision . . 

. .”); id. § 319 (“A party dissatisfied with the final written 

decision of the [Board] may appeal the decision . . . .”). 

We then held in Cuozzo that § 314(d) precludes review

of the Director’s earlier decision to institute, even after a 

final written decision. In Cuozzo, the Director instituted 

an inter partes review of certain claims, relying on several 

references not cited in the petition with respect to those 

claims. See 793 F.3d at 1272 (“Although Garmin’s petition with respect to claim 17 included the grounds on 

which the PTO instituted review, the petition did not list 

Evans and Wendt for claim 10 or Wendt for claim 14.”). 

Cuozzo challenged the Director’s decision, contending that 

the Director may only initiate an inter partes review 

proceeding on the grounds “identifie[d] . . . with particularity” in the petition, as set forth in 35 U.S.C. § 312(a)(3). 

Id. at 1272–73. We declined to review Cuozzo’s challenge, 

noting that § 314(d) broadly “exclude[s] all review of the 

decision whether to institute,” and is not just “directed to 

precluding review only before a final decision.” Id. at 

1273. As we stated, a “declaration that the decision to 

institute be ‘final’ cannot reasonably be interpreted as 

postponing review until after issuance of a final decision 

on patentability.” Id. Such an interpretation would 

render § 314(d) superfluous, “given that § 319 and § 141(c) 

already limit appeals to appeals from final decisions.” Id.; 

see also id. (“Because § 314(d) is unnecessary to limit 

interlocutory appeals, it must be read to bar review of all 

institution decisions, even after the Board issues a final 

decision.”). 

Cuozzo petitioned the Supreme Court to grant certiorari, and the Court did so. Following oral argument, the 

Court affirmed our decision, concluding that the “text of 
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the ‘No Appeal’ provision, along with its place in the 

overall statutory scheme, its role alongside the Administrative Procedure Act, the prior interpretation of similar 

patent statutes, and Congress’[s] purpose in crafting inter 

partes review, all point in favor of precluding review of 

the Patent Office’s institution decisions.”3 Cuozzo Speed 

Techs., LLC v. Lee, 136 S. Ct. 2131, 2141 (2016) (“Cuozzo 

II”). The Court acknowledged the “strong presumption” in 

favor of judicial review, but noted that “‘clear and convincing’ indications, drawn from ‘specific language,’ ‘specific 

legislative history,’ and ‘inferences of intent drawn from 

the statutory scheme as a whole’” show that Congress 

intended to bar review. Id. at 2140. The Court relied on 

two aspects in particular: the language of § 314(d), and 

the nature of the legal dispute at issue. 

With respect to the first, the Court noted that § 314(d) 

unquestionably provides that the determination whether 

to institute inter partes review “shall be final and nonappealable.” That mandate operates with particular force in 

view of Congress’s objective in creating the inter partes

review process, “giving the Patent Office significant power 

to revisit and revise earlier patent grants,” as well as the 

existence of similar provisions in related patent statutes. 

Id. at 2139–40 (citing both 35 U.S.C. § 319 and 35 U.S.C. 

§ 312 (2006) (repealed) (highlighting the nonreviewability 

 

3 The Supreme Court issued its decision in Cuozzo 

II after briefing and oral argument concluded in this case. 

We therefore requested simultaneous, supplemental 

briefing from the parties and the Patent and Trademark 

Office relating to the impact of the Supreme Court’s 

decision on this case. See Husky Injection Molding Sys. 

Ltd. v. Athena Automation Ltd., Nos. 2015-1726, -1727, 

ECF No. 55 (Fed. Cir. July 18, 2016). Those briefs were 

submitted on July 28, 2016. Id. ECF Nos. 58, 61, 62. 
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of the determination to initiate inter partes reexamination) with respect to the latter point). 

With respect to the second, the Court noted that “the 

legal dispute at issue [there was] an ordinary dispute 

about the application of certain relevant patent statutes 

concerning the Patent Office’s decision to institute inter 

partes review,” particularly the “related statutory section, 

§ 312,” and that the express language of § 314(d) “must, at 

the least, forbid an appeal that attacks a ‘determination 

. . . whether to institute’ review by raising this kind of 

legal question.” Id. at 2139. The Court emphasized that 

review is foreclosed “where the grounds for attacking the 

decision to institute inter partes review consist of questions that are closely tied to the application and interpretation of statutes related to the Patent Office’s decision to 

initiate inter partes review.” Id. at 2141 (emphasis added). 

The Court did, however, leave open the possibility that 

§ 314(d) may nevertheless allow for review of appeals that 

“implicate constitutional questions, that depend on other 

less closely related statutes, or that present other questions of interpretation that reach, in terms of scope and 

impact, well beyond ‘this section.’” Id. The Court further 

noted that it did not “categorically preclude review” of any 

final decision where the agency acted outside of its statutory authority, e.g., “canceling a patent claim for ‘indefiniteness under § 112’ in inter partes review.” Id. at 2141–

42; see also 35 U.S.C. § 311(b) (“A petitioner may request 

to cancel [a claim] only on a ground that could be raised 

under section 102 or 103.”). 

In line with the latter exception, we have similarly determined that we may review a challenge to the institution decision if it relates to the Board’s ultimate authority 

to invalidate a particular patent. That ultimate invalidation authority is purely tied to the patent challenged and 

the nature of the review requested; it is not a question of 
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who petitions for review. Achates, 803 F.3d 652; see Wi-Fi 

One, LLC v. Broadcom Corp., 2015-1944, slip op. at 8–9 

(Fed. Cir. Sept. 16, 2016) (holding that Achates remains 

good law in light of the Supreme Court’s decision in 

Cuozzo II, specifically concluding that § 315 is a statute 

closely related to the decision whether to institute); Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306 (Fed. 

Cir. 2015), cert. denied, No. 15-1145, 2016 WL 1029054 

(U.S. June 27, 2016). 

Indeed, we first established that principle in Versata, 

in an analogous covered business method (“CBM”) review 

context. See 793 F.3d at 1320. During a CBM review, the 

Board may only evaluate and invalidate a CBM patent, as 

expressly defined by statute. Id. “If a particular patent is 

not a CBM patent, there is no proper pleading that could 

be filed to bring it within the [Board]’s § 18 [CBM review] 

authority.” Id.; cf. id. at 1322 (distinguishing Cuozzo by 

noting that there a proper petition could have cited all the 

prior art, “thereby plainly giving the PTAB authority to 

invalidate the patent at issue in the IPR”). Accordingly, a 

determination whether the challenged patent satisfies the 

CBM criteria necessarily relates to the Board’s ultimate 

invalidation authority, and we held that we may review 

such a determination, even when made during institution. 

Id. at 1315, 1319–20; cf. Cuozzo, 793 F.3d at 1273 (“[T]he 

IPR statute [does not] expressly limit the Board’s authority at the final decision stage to the grounds alleged in the 

IPR petition.”). 

We then elaborated on that principle in Achates, holding that procedural limits placed on when certain parties 

must file for review do not relate to the Board’s ultimate

authority to invalidate a patent. See Achates, 803 F.3d at 

657–59. Specifically, Achates involved the time bar in 35 
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U.S.C. § 315(b).4 Id. at 653. The Patent and Trademark 

Office determined that Apple’s petitions for review did not 

trigger the time bar and instituted review. Id. at 654. On 

appeal, Achates argued that we could review that determination because it “goes to the Board’s ultimate authority to invalidate the patents.” Id. at 657. We disagreed.

In particular, we acknowledged that “compliance with 

the time-bar does not itself give the Board the power to 

invalidate a patent. Instead, the time-bar [(§ 315(b))] sets 

out the procedure for seeking IPR,” id. at 658, in contradistinction to the express authorization in CBM review for 

the Board to institute review of, and perhaps invalidate, a 

CBM patent, cf. Versata, 793 F.3d at 1320–21. At best, a 

time bar prevents particular petitioners from challenging 

a patent, Achates, 803 F.3d at 657, but that does not affect 

the Board’s authority to later invalidate that patent: “The 

Board may still invalidate a claim challenged in a timebarred petition via a[nother] properly-filed petition from 

another petitioner.” Id.; accord id. (“Just as the pleading 

in Cuozzo could have been sufficient by the inclusion of 

the missing prior art reference, . . . the timeliness issue 

here could have been avoided if Apple’s petition had been 

filed a year earlier or if a petition identical to Apple’s were 

filed by another[.]”); cf. Versata, 793 F.3d at 1320 (noting 

that no proper pleading “could be filed to bring [the patent] within the PTAB’s § 18 authority”). Because the 

question for review involved who could petition for review

rather than whether the Board could ultimately invalidate 

the patent, we held that we lacked jurisdiction to review 

 

4 35 U.S.C. § 315(b) provides: “An inter partes review may not be instituted if the petition requesting the 

proceeding is filed more than 1 year after the date on 

which the petitioner . . . is served with a complaint alleging infringement of the patent.” 
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the time-bar determination from the institution decision. 

See Achates, 803 F.3d at 659. 

The above-discussed cases establish a two-part inquiry 

for determining whether we may review a particular 

challenge to the decision whether to institute. First, we 

must determine whether the challenge at issue is “closely 

tied to the application and interpretation of statutes 

related to the Patent Office’s decision to initiate inter 

partes review,” or if it instead “implicate[s] constitutional 

questions,” “depend[s] on other less closely related statutes,” or “present[s] other questions of interpretation that 

reach, in terms of scope and impact,” “well beyond ‘this 

section.’” Cuozzo II, 136 S. Ct. at 2141 (emphasis added).

If the latter, our authority to review the decision to institute appears unfettered. But if the former, § 314(d)

forbids our review. One further exception remains, however. At the second step of the inquiry, we must ask if, 

despite the challenge being grounded in a “statute closely 

related to that decision to institute,” id. at 2142, it is

nevertheless directed to the Board’s ultimate invalidation 

authority with respect to a specific patent, id. at 2141; see

also Versata, 793 F.3d at 1319–20; Achates, 803 F.3d at

657. If so, we may review the challenge. 

B 

It is with that context in mind that we now turn to the 

instant case. As in the cases noted above, Husky’s appeal 

challenges the institution decision, specifically the Board’s 

determination during the institution phase that assignor 

estoppel cannot bar an assignor or his or her privies from 

petitioning for inter partes review. According to Husky, 

that determination involves “an interpretation issue that 

reaches, in terms of scope and impact, well beyond § 314,” 

see Appellant’s Suppl. Br. 1, and, moreover, it necessarily 

implicates the Board’s invalidation authority with respect 

to the ’536 patent, see, e.g., Appellant’s Reply Br. 36–43. 
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For those reasons, Husky asserts that we have jurisdiction to review the assignor estoppel determination. 

We are mindful of the otherwise powerful presumption 

favoring judicial review of agency determinations, but in 

applying the foregoing framework, we conclude that we 

lack the authority to review the Board’s determination in 

its institution decision that assignor estoppel does not 

apply at the Patent and Trademark Office.

First, we conclude that the question whether assignor

estoppel applies in full force at the Patent and Trademark 

Office does not fall into any of the three categories the 

Supreme Court specifically mentioned as reviewable. 

Nothing about the question implicates a constitutional 

concern such as a due process violation, and no party 

contends as much. Cuozzo II, 136 S. Ct. at 2141. 

Nor does it “depend on other less closely related statutes.” Id. As an initial matter, the doctrine of assignor 

estoppel does not derive from statute. Rather, it is an 

equitable doctrine that arose in the patent infringement 

context to prohibit an assignor or his or her privies from 

stating the patent rights earlier assigned are of no value. 

Diamond Sci. Co. v. Ambico, Inc., 848 F.2d 1220 (Fed. Cir. 

1988). In Diamond Scientific, we reasoned that the 

“implicit representation by the assignor that the patent 

rights that he is assigning (presumably for value) are not 

worthless” must be honored, id. at 1224, for “[t]o allow the 

assignor to make that representation at the time of the 

assignment (to his advantage) and later to repudiate it 

(again to his advantage) could work an injustice against 

the assignee,” id. Thus, the question of assignor estoppel 

itself does not “depend on other less closely related statutes.” 

Nevertheless, a determination whether assignor estoppel applies at the Patent and Trademark Office in the 

inter partes review context necessarily requires an interpretation of 35 U.S.C. § 311(a) (“[A] person who is not the 
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owner of a patent may file . . . .”). See Institution Decision

at *7 (“Consequently, under the statute, an assignor of a 

patent, who is no longer an owner of the patent at the 

time of filing, may file a petition requesting inter partes 

review. This statute presents a clear expression of Congress’s broad grant of the ability to challenge the patentability of patents through inter partes review.” (emphasis 

added)). We must therefore assess whether § 311 constitutes a “closely related” or an “other less closely related” 

statute. See Cuozzo II, 136 S. Ct. at 2141. 

Even though the Supreme Court did not set forth any 

specific framework for determining if a statute is “closely 

related,” the statutes “closely related” to the decision 

whether to institute are necessarily, and at least, those 

that define the metes and bounds of the inter partes

review process. And an interpretation of § 311 and its 

prescription of “a person who is not the owner of a patent 

may file” to either include or foreclose assignor estoppel is 

very “closely related” to any decision to initiate inter 

partes review. 

Husky focuses on the third exception set forth by the 

Supreme Court, arguing that the question of assignor 

estoppel is ultimately an “interpretation of an issue that 

reaches, in terms of scope and impact, well beyond § 314.” 

Appellant’s Suppl. Br. 1. We do not agree. Section 314 

describes the threshold determination the Patent and 

Trademark Office must make before it can institute a 

review; namely, the Director must first determine “that 

the information presented in the petition . . . shows that 

there is a reasonable likelihood” the petitioner would 

prevail on the patentability grounds raised. 35 U.S.C. § 

314(a). The scope of the section thus pertains to arguments concerning patentability and the necessary 

strength of those arguments before the Director is authorized to initiate review. The question of assignor estoppel 

implicates those very same concerns; if assignor estoppel 

applies, an assignor or his or her privies may not chal-
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lenge the patentability of the patent earlier assigned, and 

any petition filed by an assignor or his or her privies falls 

far short of the “reasonable likelihood” standard guarding 

against improper institution. See Mentor Graphics Corp. 

v. Quickturn Design Sys., Inc., 150 F.3d 1374, 1377 (Fed. 

Cir. 1998) (“Assignor estoppel prevents a party who 

assigns a patent to another from later challenging the 

validity of the assigned patent.”). The impact of assignor 

estoppel thus cannot be divorced from the very precise

scope of § 314 simply to justify our review. The issue is 

not “well beyond this section,” and hence it is beyond our 

review. 

Although we conclude that the assignor estoppel question is not entitled to review under the three exceptions in 

Cuozzo II, we must nevertheless further determine if, 

despite the question’s close ties to the decision to institute, the question relates to the Board’s ultimate invalidation authority. We conclude that it does not. 

As in this case, both Versata and Achates involve statutes “closely related” to the decision to initiate the respective reviews, as we have defined such statutes here today. 

Nevertheless, in Versata, we held that we could review a 

determination whether a certain patent met the statutory 

definition of a CBM patent because that question necessarily related to the Board’s ultimate authority to invalidate that patent during a CBM review. 793 F.3d at 1315, 

1319–20. As noted above, and in contrast, we elaborated 

in Achates that the Board’s invalidation authority derives 

from the patent challenged and the type of the review 

requested; it is not a question of who petitions for review. 

We thus held that a bar preventing particular petitioners

from challenging a patent does not impact the Board’s 

invalidation authority, for “[t]he Board may still invalidate a claim challenged in a time-barred petition via 

a[nother] properly-filed petition from another petitioner.” 

Achates, 803 F.3d at 657. 
 HUSKY INJECTION MOLDING SYS. v. 

ATHENA AUTOMATION LTD. 

18

As we have stated, assignor estoppel operates to prevent “one who has assigned the rights to a patent (or [a]

patent application) from later contending that what was 

assigned” lacks value. Diamond Sci., 848 F.2d at 1224. It 

does not foreclose all challenges to a patent’s validity from 

the remainder of the general public. See id. (“The essence 

of the principle of fair dealing which binds the assignor of 

a patent in a suit by the assignee, even though it turns 

out that the patent is invalid or lacks novelty, is that in 

this relation the assignor is not part of the general public 

but is apart from the general public.” (citation and quotation marks omitted)). To that end, it does not prevent a 

tribunal from evaluating the validity of any challenged 

claims generally, but rather simply limits the parties that 

may ask the tribunal for such an evaluation. 

In that way, assignor estoppel differs from the certain 

statutory limits placed on the Board’s authority in a CBM 

review. In Versata, the determination in question turned 

on the type of patent involved, for the nature of the patent 

alone made it subject to “a special [Board] power to invalidate.” 793 F.3d at 1321. In contrast, assignor estoppel 

“does not itself give the Board the power to invalidate a 

patent.” See Achates, 803 F.3d at 658. Rather, it is of a 

piece with the procedural limits deemed unreviewable in 

Achates, where those limits effectuated the orderly progress of inter partes review. As we reasoned, a failure to 

follow the time bar by one petitioner would not foreclose 

all future review by the Board; it would simply prevent a 

particular petitioner from challenging the patent’s claims. 

Id. at 657. Likewise, that one petitioner may be estopped 

from challenging the patent does not foreclose all future 

review by the Board of that patent. Indeed, “[t]he fact 

that the petition was defective is irrelevant because a 

proper petition could have been drafted.” See Cuozzo, 793 

F.3d at 1274. Ultimately, any question concerning assignor estoppel necessarily implicates who may petition 

for review, and, as we have held, such a question falls 
HUSKY INJECTION MOLDING SYS. v. 

ATHENA AUTOMATION LTD. 

19

outside of the narrow exceptions to the otherwise broad 

ban on our review of the decision whether to institute. 

For the reasons articulated above, we conclude that 

we lack jurisdiction to review the Board’s determination 

on whether assignor estoppel precludes it from instituting 

inter partes review. We therefore dismiss Husky’s appeal, 

and express no opinion on the merits of the Board’s conclusion that assignor estoppel may not bar an assignor or 

his or her privies from petitioning for inter partes review. 

II. ATHENA’S CROSS-APPEAL

The question before us in the cross-appeal relates to 

incorporation by reference, and ultimately to anticipation. 

We review the Board’s legal conclusions de novo, In re 

Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), and the 

Board’s factual findings underlying those determinations 

for substantial evidence, In re Gartside, 203 F.3d 1305, 

1316 (Fed. Cir. 2000). A finding is supported by substantial evidence if a reasonable mind might accept the evidence to support the conclusion. See Consol. Edison Co. v. 

NLRB, 305 U.S. 197, 229 (1938). 

Anticipation is a fact question that we review for substantial evidence. In re Gleave, 560 F.3d 1331, 1334 (Fed. 

Cir. 2009). A prior art document may anticipate a claim if 

it describes every element of the claimed invention, either 

expressly or inherently. See Advanced Display Sys., Inc. 

v. Kent State Univ., 212 F.3d 1272, 1282 (Fed. Cir. 2000). 

Other material may be considered as part of that prior art 

document if it is incorporated by reference. Id. 

A host document incorporates material by reference if 

it “identif[ies] with detailed particularity what specific 

material it incorporates and clearly indicate[s] where that 

material is found in the various documents.” Id. Whether 

and to what extent material is incorporated by reference 

is a question of law we review de novo. See Harari v. Lee, 

656 F.3d 1331, 1334 (Fed. Cir. 2011). In making such a
 HUSKY INJECTION MOLDING SYS. v. 

ATHENA AUTOMATION LTD. 

20

determination, we assess whether a skilled artisan would 

understand the host document to describe with sufficient 

particularity the material to be incorporated. Id. 

Athena’s cross-appeal contests the Board’s determination that the prior art Glaesener does not incorporate the 

prior art Choi by reference, and thereby the Board’s 

finding that claims 2, 3, 17, and 19 are not unpatentable 

as anticipated. Two specific paragraphs in Glaesener are 

at issue. The first reads: “The tie-bar nuts can be secured 

. . . by any appropriate mechanism, such as the pineapple 

and toothed-ring mechanism described in [Choi].” 

Glaesener ¶ 0035. The second reads: “All cross-referenced 

patents and application[s] referred to in this specification 

are hereby incorporated by reference.” Id. ¶ 0049. The 

Board determined that neither paragraph identifies with 

sufficient particularity what material from Choi Glaesener meant to incorporate. 

On appeal, Athena contends that it provided evidence 

establishing that a skilled artisan would understand with 

sufficient particularity what the “pineapple and toothedring mechanism” language referred to in Choi. Alternatively, Athena contends that the second statement effects 

a broad incorporation that cannot be negated by the use of 

a more precise incorporation statement elsewhere. 

We agree; Glaesener identifies with sufficient particularity what it incorporates from Choi. As an initial matter, the fact that Choi does not recite either of the words

“pineapple” or “toothed-ring” throughout its disclosure is 

ultimately of no moment. The incorporation standard 

relies only on the reasonably skilled artisan and his or her 

ability to deduce from language, however imprecise, what 

a host document aims to incorporate. See Harari, 656 

F.3d at 1331; Advanced Display, 212 F.3d at 1283; cf. 

Gleave, 560 F.3d at 1334 (A “reference need not satisfy an 

ipsissimis verbis [word-for-word] test” to anticipate.).
HUSKY INJECTION MOLDING SYS. v. 

ATHENA AUTOMATION LTD. 

21

Even so, Choi explicitly identifies toothed components 

when discussing its securing/clamping assemblies, i.e., its 

locking mechanism. And, importantly, Figure 3A discloses the only locking mechanism in Choi. 

Referring to Figs. 3A and 3B, in order for the securing/clamping assembly 22a of platen 14 to 

function with the tie bar 2a, tie bar 20a includes 

an elongated end section having a plurality of 

spaced protrusions in the form of teeth 38a separated by longitudinally extending inner slots 40a 

as shown in Fig. 3B. Accordingly, at the end of tie 

bar 20a is a toothed outer surface, as shown in Fig. 

3A. The toothed outer surface of tie bar 20a is in 

the form of longitudinal outer strips of teeth 39a 

extending in the axial direction of the tie bar, 

wherein the teeth 38a are preferably aligned in a 

radial direction on the tie bar and separated by a 

space in the axial direction. . . . 

Outer strips of teeth 39a and slots 40a of tie bar 

20a are adapted to engage and align, respectively, 

with inner teeth and grooves of securing/clamping 

assembly 22a . . . . Securing/clamping assembly 

22a is comprised of a member in the form of a piston 44a . . . . Piston 44a includes an outer surface 

46a and an inner surface with axially extending

teeth 48a separated by spaces in the axial direction, which are adapted to engage teeth 38a of the 

strips of teeth 39a of tie bars 20a. A slight axial 

clearance is provided between the teeth 38a of tie 

bars 20a and the inner teeth 48a of toothed piston

44a to allow for relative movement . . . .

Choi, col. 5 l. 40–col. 6 l. 5 (emphases added). A reasonably skilled artisan would thus appreciate Glaesener’s 

reference of “pineapple and toothed-ring” to describe, with 

sufficient particularity, the above-referenced disclosure in 

Choi. To find otherwise would be to undervalue the
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ATHENA AUTOMATION LTD. 

22

knowledge of a skilled artisan. Indeed, Athena identified 

Figure 3a as the “pineapple and toothed-ring mechanism” 

Glaesener referred to both in its petition for inter partes

review and during its trial at the Board. See J.A. 113–14;

J.A. 441–42. Nothing more was required. 

Glaesener’s two paragraphs, ¶ 0035 and ¶ 0049, accordingly work in concert to incorporate at least some 

portions of Choi. It is therefore of no consequence whether Glaesener’s broader statement in fact incorporates the 

rest of Choi, i.e., in its entirety. Cf. Harari, 656 F.3d at 

1335–36. Ultimately, the Board erred in determining 

that Glaesener does not incorporate Choi for purposes of 

anticipation. Because the Board provided no further 

reasoning why claims 2, 3, 17, and 19 were not anticipated, we vacate and remand for the Board to evaluate 

anticipation in the first instance in light of Glaesener/Choi. 

CONCLUSION

We have considered the remaining arguments in both 

appeals, but find them unpersuasive. For the foregoing 

reasons, we dismiss Husky’s appeal for lack of jurisdiction; we vacate the Board’s decision on incorporation by 

reference and its finding of no anticipation with respect to 

claims 2, 3, 17, and 19; and we remand for further consideration consistent with this opinion. 

DISMISSED IN PART, VACATED AND REMANDED 

IN PART

COSTS

Costs to Athena. 
United States Court of Appeals 

for the Federal Circuit ______________________ 

HUSKY INJECTION MOLDING SYSTEMS LTD.,

Appellant

v.

ATHENA AUTOMATION LTD.,

Cross-Appellant

______________________ 

2015-1726, 2015-1727

______________________ 

Appeals from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. 

IPR2013-00290.

______________________ 

PLAGER, Circuit Judge, concurring in part and dissenting 

in part. 

I concur in the majority’s judgment regarding vacating and remanding the cross-appeal. I dissent from the 

judgment that we lack jurisdiction to review the determination by the Patent Trial and Appeal Board (“Board”) 

regarding whether assignor estoppel precludes it from 

instituting inter partes review in this case. I believe the 

majority’s reasoning is mistaken, and I respectfully 

dissent from it and the conclusion to which it leads. 

Regrettably, the majority’s view may contribute to the 

already-existing confusion regarding which matters this 

court can review on appeal from a final decision by the 

Board. 
HUSKY INJECTION MOLDING SYS. v.

ATHENA AUTOMATION LTD. 

2

Summarizing the case in its simplest terms, this is 

why: 

Athena, pursuant to the statutory provisions of the 

America Invents Act (“AIA”), filed its petition requesting 

inter partes review of the ’536 patent owned by Husky. 

Husky, in its preliminary response, stated its opposition 

to the petition. It argued that Athena was barred from 

filing its petition by the doctrine of assignor estoppel. The 

Board rejected Husky’s argument; it took the position that 

§ 311(a) of the AIA determined who could file a petition, 

and that assignor estoppel did not provide an exception to 

§ 311(a).

The Board explained that § 311(a) provided simply 

that “a person who is not the patent owner” could file a 

petition; since Athena was not the owner, it was such a 

person. The Board interpreted the provision to mean just 

what it said and not to have an implicit exception that 

would prevent a petitioner, who is subject to assignor 

estoppel, from filing. Thus the Board applied essentially 

a ‘plain meaning’ interpretation to the language of 

§ 311(a). Thereafter, having determined that the petition 

to institute was properly before it, the Board instituted 

review and, in due course, issued a final written decision 

on the merits, upholding some claims and invalidating 

others. 

In its appeal to this court, Husky stated that the single issue in its appeal is: “Did the Board legally err by 

determining that, pursuant to 35 U.S.C. § 311, the doctrine of assignor estoppel does not apply to the inter 

partes review concerning the ’536 patent . . . .” Appellant’s Br. 1. Much of the briefing in this case focused on 

the application of assignor estoppel at the decision to 

institute stage, though some seemed to address more 

broadly the issue of assignor estoppel’s application to 

Board proceedings generally. Be that as it may, the only 

issue properly raised by the record on appeal is the one 
HUSKY INJECTION MOLDING SYS. v. 

ATHENA AUTOMATION LTD. 

3

initiated by the Board and identified by Husky: at the 

time an initial petition is filed, does § 311(a) incorporate 

an unstated exception regarding who can file an initial 

petition, an exception based on assignor estoppel?

Before we can address the correctness of the Board’s 

resolution of that issue, we must first decide whether as a 

matter of law we can review the Board’s determination, a 

determination that was decisive regarding whether the 

Board could institute inter partes review of the ’536 

patent. A statute and a Supreme Court decision govern 

the answer: Congress’s mandate in § 314(d) that “[t]he 

determination . . . whether to institute an inter partes 

review under this section shall be final and nonappealable,” and the recent opinion of the Supreme Court in 

Cuozzo.1 

It is clear from the prior opinions of this court, unquestioned by the Supreme Court, that the statute bars 

immediate review of a Board decision to institute an inter 

partes review, whether by interlocutory appeal,2 mandamus,3 or other procedural device.4 What has not been 

 

1 Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131 

(2016).

2 We have considered and rejected interlocutory appeal of a decision not to institute. See St. Jude Med., 

Cardiology Div., Inc. v. Volcano Corp., 749 F.3d 1373, 

1375–76 (Fed. Cir. 2014). We also have considered and 

rejected interlocutory appeal or mandamus relief for a 

decision to institute (later vacated by the Board). See 

GEA Process Eng’g, Inc. v. Steuben Foods, Inc., 618 F. 

App’x 667 (Fed. Cir. 2015). 

3 In re Procter & Gamble Co., 749 F.3d 1376, 1378–

79 (Fed. Cir. 2014).

4 See HP Inc. v. MPHJ Tech. Inv., LLC, 817 F.3d 

1339, 1344–47 (Fed. Cir. 2016) (on appeal of a final writ-
HUSKY INJECTION MOLDING SYS. v.

ATHENA AUTOMATION LTD. 

4

clear is, when a final written decision of the Board is 

appealed to this court, as provided by statute,5 what 

aspects, if any, of the Board’s decision to institute are 

then reviewable? 

One part of that question is no longer in dispute—the 

fact that a particular issue is determined initially by the 

Board at the decision to institute stage does not affect the 

reviewability of the issue at the final written decision 

stage, so long as the issue remains relevant to the final 

merits under review. See, e.g., Versata Dev. Grp., Inc. v. 

SAP Am., Inc., 793 F.3d 1306, 1318–19, 1329 (Fed. Cir. 

2015) (finding we could review on appeal of a final written 

decision whether the Board correctly took jurisdiction 

over the patent at issue as a CBM patent and whether the 

Board was authorized to rely on § 101 in CBM cases); In 

re Magnum Oil Tools Int’l, Ltd., No. 15-1300, 2016 WL 

3974202 at *4 (Fed. Cir. July 25, 2016) (finding we could 

review statements made by the Board in the decision to 

institute that were later relied upon in the final written 

decision).

With regard to the larger question—on appeal to this 

court of a final written decision, what aspects, if any, of 

the initial decision to institute remain subject to review—

one view is that no aspect of the decision to institute is 

reviewable. That seems to be what the statute literally 

says, thus making the decision to institute entirely an 

administrative determination, however it is made. That 

is now a familiar argument, sometimes reflected in case 

outcomes phrased in various ways based on assorted

distinctions in the cases.

 

ten decision, dealing with whether § 314(d) barred review 

of an APA challenge to the Board’s decision to institute). 

5 § 319. 
HUSKY INJECTION MOLDING SYS. v. 

ATHENA AUTOMATION LTD. 

5

A different view, one that takes into account the long 

tradition of judicial review of administrative decisions as 

well as the mandate of the APA, suggests that the bar to 

judicial review under § 314(d) should be understood as 

limited to interlocutory appeals; what Congress wanted to 

avoid was piecemeal appellate review. Once a final 

written decision is rendered, the entire case on appeal is 

properly before the court, including issues surrounding 

the Board’s initial decision to institute review. In Cuozzo, 

that was essentially the position of Justice Alito, with 

whom Justice Sotomayor joined. See 136 S. Ct. at 2150–

53 (Alito, J., concurring in part and dissenting in part).

The Cuozzo majority did not go as far as Justices 

Alito and Sotomayor would; the Court determined that 

§ 314(d) was not limited to barring interlocutory appeals. 

Id. at 2140. However, by also rejecting the ‘no review of 

the decision to institute’ view, the Court took an intermediate position that fundamentally altered the playing 

field. The Court readily recognized that several factors 

pointed in favor of precluding any review of the Patent 

Office’s institution decisions. Id. at 2139–41. Nevertheless, said the Court, “in light of § 314(d)’s own text and 

the presumption favoring review,” there is one category of 

cases when the bar of § 314(d) applies, and at least three

others when it may not.

The one category in which the bar applies is when 

“the grounds for attacking the decision to institute inter 

partes review consist of questions that are closely tied to 

the application and interpretation of statutes related to 

the Patent Office’s decision to initiate inter partes review.” Id. at 2141. The Court then stated “that we need 

not, and do not, decide the precise effect of § 314(d) on 

appeals that [1] implicate constitutional questions, that 

[2] depend on other less closely related statutes, or that 
HUSKY INJECTION MOLDING SYS. v.

ATHENA AUTOMATION LTD. 

6

[3] present other questions of interpretation that reach, in 

terms of scope and impact, well beyond ‘this section.’” Id.6

Thus the Court tells us that, despite the express language of § 314(d), this court’s review on appeal of a final 

written decision is not limited to the substantive merits of 

the case under §§ 102 and 103, but may include aspects of 

the Board’s decision to institute. For us, then, the issue 

in this case is where does assignor estoppel fit in the 

Court’s matrix of what now can be reviewed?7

Assignor estoppel is an equitable doctrine that is recognized in the common law.8 Given the long tradition of 

judicial review of administrative decision-making,9 and 

the Supreme Court’s specific reference in Cuozzo to the 

APA’s provisions mandating review of agency action,10 it 

would seem anomalous to say that the application of such 

a rule to proceedings before the Board, a unit of an ad-

 

6 The Court went further to explain that it did not 

preclude review of a final decision when a petition raised 

a due process problem with the entire proceeding, nor did 

the Court intend to enable an agency to act outside its 

statutory limits. Id. at 2141–42. The Court observed that 

such “shenanigans” may be reviewable under § 319 and 

the APA; similar to its treatment of the three reviewability categories, the Court did not elaborate on what constitutes ‘shenanigans.’

7 The first category, constitutional questions, is not 

before us as no constitutional issues have been raised. 

8 “Assignor estoppel is an equitable doctrine that 

prevents one who has assigned the rights to a patent (or 

patent application) from later contending that what was 

assigned is a nullity.” Diamond Sci. Co. v. Ambico, Inc., 

848 F.2d 1220, 1224 (Fed. Cir. 1988).

9 See, e.g., Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986); 5 U.S.C. § 702.

10 Id. at 2142 (citing 5 U.S.C. §§ 706(2)(A)–(D)).
HUSKY INJECTION MOLDING SYS. v. 

ATHENA AUTOMATION LTD. 

7

ministrative agency, is exclusively for the agency to 

decide. Applying the Cuozzo criteria, we must examine 

whether, by basing its decision on its ‘interpretation’ of 

what would appear to be a ‘related statute,’ the Board has 

insulated itself from judicial review? I think not. 

For one, the doctrine of assignor estoppel is in the nature of a common law doctrine, and not itself based on 

statute. We should be reluctant to allow immunizing 

judicial review simply because the Board may attribute 

its decision to an interpretation of a ‘related’ statute. 

That could open the door to possible manipulation by 

parties in presenting and arguing cases before the Board 

and this court.

More importantly, in order to honor the Supreme 

Court’s direction to this court to exercise judicious review 

over determinations of the Board, including when called 

for by extending that review to the Board’s decisions to 

institute, we must take a close look at what is actually 

involved. Even if the Board is presumed to have succeeded in tying the question of assignor estoppel to interpretation of a ‘related statute,’ in this case § 311(a), by the way 

it decided the matter, it is not so clear that this is “closely 

tied to the application and interpretation of statutes 

related to the Patent Office’s decision to initiate inter 

partes review.” Id. at 2141. The decision to institute 

inter partes review is governed primarily by the specifics 

of § 314(a)–(c). It would not be beyond reason to consider 

§ 311 to be instead a “less closely related statute.” (The 

terms of the second category in Cuozzo).

And beyond that, the question of whether assignor estoppel applies to the decision to institute made by the 

Board in this case could be considered to be one that 

“present[s] other questions of interpretation that reach, in 

terms of scope and impact, well beyond ‘this section.’” Id. 

(The terms of the third category in Cuozzo). And again, 

the phrase, “this section,” put in quotes in the original, 
HUSKY INJECTION MOLDING SYS. v.

ATHENA AUTOMATION LTD. 

8

serves as an apparent reference to the other subparts of 

§ 314. 

The Supreme Court’s pass of the “precise effect of 

§ 314(d) on appeals that implicate” those categories 

means that this court must undertake that determination 

in future cases. Applying either of those Cuozzo categories to cases before this court, including issues decided in 

past cases, reveals that there is a range of reviewable 

issues that this court is obligated to consider. Examples 

may include, among others, filing deadlines and joinder 

and estoppel issues.11

I offer no opinion as to whether the Board correctly 

determined that assignor estoppel does or does not apply 

to bar the petition in this case; that issue is yet to be 

addressed. In my view it is necessary that we decide that 

issue as part of a proper judicial review of the case before

us on final written decision. Whether under the second or 

third of Cuozzo’s suggested categories for review, or 

because it is not within Cuozzo’s basic standard for applying the bar of § 314(d) in the first instance, the question of 

whether the Board properly ruled on the application of 

assignor estoppel to this case is clearly subject to this 

court’s judicial power of review.

Accordingly, I find the majority’s analysis of this case, 

its unnecessary commentary approving prior cases that 

may no longer be good law in light of Cuozzo, and its 

discussion of why the question of the application of assignor estoppel to this case does not relate to “the Board’s 

ultimate invalidation authority,” unhelpful. From the 

majority’s refusal to undertake the required review of the 

 

11 Accord Judge Reyna’s concurring opinion in Wi-Fi

One, LLC v. Broadcom Corp., No. 15-1944, 2016 WL 

4933298, at *8–9 (Sept. 16, 2016) (Reyna, J., concurring). 
HUSKY INJECTION MOLDING SYS. v. 

ATHENA AUTOMATION LTD. 

9

Board’s decision, the issue properly raised on appeal, I 

respectfully dissent.