NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

C.R. BARD, INC., BARD PERIPHERAL VASCULAR, 

INC.,

Appellants

v.

ANGIODYNAMICS, INCORPORATED,

Cross-Appellant

______________________ 

2017-1851, 2017-1865, 2017-1906, 2017-1931, 2017-1943

______________________ 

Appeals from the United States Patent and Trademark Office, Patent Trial and Appeal Board in Nos. 

95/002,089, 95/002,090, 95/002,092.

______________________ 

Decided: September 28, 2018

______________________ 

VINCENT JOSEPH BELUSKO, Morrison & Foerster LLP, 

Los Angeles, CA, argued for appellants. Also represented 

by NICOLE MARIE SMITH; SETH W. LLOYD, BRIAN ROBERT 

MATSUI, Washington, DC. 

 DANIELLE VINCENTI TULLY, Cadwalader, Wickersham 

& Taft LLP, New York, NY, argued for cross-appellant. 

Also represented by CHRISTOPHER A. HUGHES, JOHN 

THOMAS MOEHRINGER, MICHAEL BRIAN POWELL, MICHAEL 
2 C.R. BARD, INC. v. ANGIODYNAMICS, INC. 

J. SEBBA. 

 ALFRED W. ZAHER, Buchanan Ingersoll & Rooney PC, 

Philadelphia, PA, for amicus curiae Medical Components, 

Inc. Also represented by RALPH GEORGE FISCHER, Pittsburgh, PA. 

 ______________________ 

Before O’MALLEY, TARANTO, and STOLL, Circuit Judges. 

O’MALLEY, Circuit Judge. 

These consolidated appeals involve three of C.R. Bard, 

Inc.’s and Bard Peripheral Vascular, Inc.’s (collectively, 

“Bard’s”) medical device patents. In several inter partes 

reexamination proceedings requested by AngioDynamics, 

Inc., the Patent Trial and Appeal Board invalidated 

thirty-four of the patents’ forty-one claims as anticipated 

and/or obvious over the prior art.1 Both parties appealed 

various aspects of the Board’s rulings.

With respect to the Board’s decision that a particular 

prior art reference qualifies as a “printed publication” 

 

1 See AngioDynamics, Inc. v C.R. Bard, Inc., Appeal 

2015-001533, 2016 WL 923521 (P.T.A.B. Mar. 10, 2016) 

(“’302 Decision”); AngioDynamics, Inc. v C.R. Bard, Inc., 

Appeal 2015-001533, 2017 WL 542597 (P.T.A.B. Jan. 31, 

2017) (“’302 Rehearing Decision”); AngioDynamics, Inc. v 

C.R. Bard, Inc., Appeal 2015-004554, 2016 WL 1239176 

(P.T.A.B. Mar. 28, 2016) (”’022 Decision”); AngioDynamics, Inc. v C.R. Bard, Inc., Appeal 2015-004554, 2017 WL 

766740 (P.T.A.B. Feb. 17, 2017) (“’022 Rehearing Decision”); AngioDynamics, Inc. v C.R. Bard, Inc., Appeal 

2015-004506, 2016 WL 1166545 (P.T.A.B. Mar. 24, 2016)

(“’615 Decision”), AngioDynamics, Inc. v C.R. Bard, Inc., 

Appeal 2015-004506 (P.T.A.B. February 21, 2017) (J.A. 

146) (“’615 Rehearing Decision”). 
C.R. BARD, INC. v. ANGIODYNAMICS, INC. 3

under 35 U.S.C. § 102(b), we vacate and remand for the 

Board to clarify its findings. We also conclude that some 

of the Board’s anticipation and obviousness rulings are 

predicated on an erroneous claim construction. As to 

these rulings, we reverse the Board’s anticipation findings 

and remand certain of its obviousness findings for further 

consideration under the proper construction and in light 

of any further findings on the printed publication question. We affirm in all other respects. 

I. BACKGROUND

C.R. Bard, Inc.’s and Bard Peripheral Vascular, Inc.’s 

U.S. Patent Nos. 7,785,302 (“’302 patent”), 7,947,022 

(“’022 patent”), and 7,959,615 (“’615 patent”), all titled 

“Access Port Identification Systems and Methods,” are 

related by way of a provisional application filed in March 

2005, and have similar specifications.2 The patents 

describe medical devices, called access ports, implanted

beneath a patient’s skin to enable direct access to a central vein for delivery of medicine or other fluids. ’302 

patent, col. 1, ll. 13–19. These ports typically include a 

bio-compatible housing, a septum, and a cavity. Once the 

port is implanted, a doctor punctures the patient’s skin 

and the septum with a needle to deliver fluid into the 

cavity. The fluid is then transmitted from the cavity into 

a catheter, which is sutured to one of the patient’s central 

veins. For patients requiring frequent and long-term 

intravenous therapy, these devices allow medical professionals to easily and repeatedly access a major vein 

without having to go through tissue or muscle each time. 

 

2 The ’615 patent and ’022 patent are a continuation and continuation-in-part of the ’302 patent, respectively. For simplicity, we cite only to the specification of 

the ’302 patent unless otherwise specified.
4 C.R. BARD, INC. v. ANGIODYNAMICS, INC. 

The patents explain that prior art “access ports of different manufacturers or models . . . typically exhibit[ed] 

substantially similar geometries.” Id. col. 1, ll. 46–49. 

Because of these similarities, doctors were unable to 

identify and distinguish specific types of ports after they 

were implanted. This prevented doctors from distinguishing so-called “power injectable ports” from ordinary ones. 

Power injectable ports are designed to be “injected and 

pressurized by mechanical assistance” at high flow rates. 

Id. col. 3, ll. 43–47. By contrast, regular access ports are 

not manufactured to withstand high-pressure injections. 

Power injecting a non-power injectable port can cause the 

port to fracture while in the patient’s body, leading to 

serious bodily injury or even death. 

The patents generally describe access ports having “at 

least one identifiable characteristic that may be sensed or 

otherwise determined subsequent to subcutaneous implantation.” Id. col. 1, ll. 55–58. In some embodiments, 

the “identifiable characteristic” is a message that “may be 

perceived via x-ray or ultrasound imaging.” Id. col. 4, ll. 

15–24. In other embodiments, medical professionals can 

use the port’s geometry to identify whether the port is 

power injectable by touch, even after it is implanted. 

The patents collectively recite forty-one claims, which 

the parties classify into two partially overlapping groups. 

In the first group, which includes all claims of the ’302 

and ’022 patents, the identifiable characteristic is a 

“radiopaque alphanumeric message.” The message is 

opaque to radiation, so it is visible on an x-ray, and “indicat[es] that the assembly is power injectable.” Id. col. 

13, ll. 18–19. Claim 5 of the ’302 patent is representative 

of these “radiopaque claims”:

5. A venous access port assembly for implantation 

into a patient, comprising:

a housing having an outlet, and
C.R. BARD, INC. v. ANGIODYNAMICS, INC. 5

a needle-penetrable septum, the needlepenetrable septum and the housing together defining a reservoir,

wherein:

the assembly includes a radiopaque alphanumeric message observable through interaction with 

X-rays subsequent to subcutaneous implantation of the assembly, 

and

the alphanumeric message indicating that the assembly is power injectable. 

Id. col. 13, ll. 8–19 (emphasis added). 

In the second group of claims, which includes all 

claims of the ’615 patent, the identifiable feature is one or 

more “concave side surfaces” that curve inward toward 

the port housing. Like the alphanumeric message in the 

radiopaque claims, a concave side allows a doctor to 

identify the access port, albeit by palpation, after implantation. Claim 1 of the ’615 patent is representative of 

these “concave side” claims:

1. An access port for providing subcutaneous access to a patient, comprising:

a body defining a cavity accessible by inserting a needle through a septum, the 

body including a plurality of side surfaces 

and a bottom surface bounded by a bottom 

perimeter, the bottom surface on a side of 

the port opposite the septum, the bottom 

perimeter including a concave portion, the 

side surfaces including a first side surface 

through which an outlet stem extends; 

and
6 C.R. BARD, INC. v. ANGIODYNAMICS, INC. 

at least one structural feature of the access port identifying the access port subsequent to subcutaneous implantation as 

a particular type of access port, the at 

least one structural feature comprising a 

concave side surface in a second side surface different from the first side surface, 

the concave side surface extending to the 

bottom perimeter concave portion.

Id. col. 12, ll. 52–67 (emphasis added).

In August 2012, AngioDynamics filed three requests 

for inter partes reexamination of the ’302, ’022, and ’615 

patents, challenging all forty-one claims. A patent Examiner granted the requests as to all but one claim. In a 

series of decisions, the Board ultimately affirmed in part 

and reversed in part, holding thirty-four of the forty

claims addressed by the Examiner invalid as anticipated 

and/or obvious over the prior art of record.3 Both parties 

filed requests for rehearing, which were denied. 

Bard and AngioDynamics timely appealed and crossappealed various aspects of the Board’s decisions. We 

have jurisdiction under 28 U.S.C. § 1295(a)(4)(A). 

II. DISCUSSION

We review the Board’s conclusions of law de novo and 

its findings of fact for substantial evidence. In re Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000). Substantial 

 

3 The Board invalidated claims 5–10 of the ’302 patent, claims 1–20 of the ’022 patent, and claims 1–5 and 

8–10 of the ’615 patent. See ’302 Decision, 2016 WL 

923521, at *21; ’022 Decision, 2016 WL 1239176, at *21; 

’615 Decision, 2016 WL 1166545, at *16. The Board 

upheld claims 1–4 of the ’302 patent and claims 6–7 of the 

’615 patent. Id.
C.R. BARD, INC. v. ANGIODYNAMICS, INC. 7

evidence is “such evidence as a reasonable mind might 

accept as adequate to support a conclusion.” Transocean 

Offshore Deepwater Drilling, Inc. v. Maersk Drilling USA, 

Inc., 699 F.3d 1340, 1347 (Fed. Cir. 2012). But our review 

of the Board is also rooted in “basic principles of administrative law.” Pers. Web Techs., LLC v. Apple, Inc., 848 

F.3d 987, 992 (Fed. Cir. 2017). The Board must therefore 

provide conclusions that “suffice for us to see that the 

agency has done its job and must be capable of being 

reasonably . . . discerned from a relatively concise . . . 

discussion.” In re NuVasive, 842 F.3d 1376, 1383 (Fed. 

Cir. 2016) (internal quotation marks omitted). If it does 

not, then we may not be able to determine whether the 

Board’s findings are supported by substantial evidence. 

In that case, remand may be appropriate. See, e.g., Pers. 

Web., 848 F.3d at 994 (remanding for the Board to “reconsider the merits of the obviousness challenge” where the 

Board’s analysis was insufficient to permit meaningful 

judicial review).

A. Bard’s Appeal 

Bard makes several arguments for why we should reverse the Board’s rulings invalidating claims 5–10 of the 

’302 patent, claims 1–20 of the ’022 patent, and claims 8–

9 of the ’615 patent. First, with respect to the ’302 and 

’022 patent claims, Bard argues that the Board erred in 

concluding that a particular prior art reference used to 

invalidate those claims qualifies as a “printed publication” 

under 35 U.S.C. § 102(b).4 Second, Bard argues that the 

Board erred in construing certain claims to encompass 

both power injectable and non-power injectable access 

 

4 All of the patents at issue here have an effective 

filing date before the effective date of the Leahy-Smith 

America Invents Act (“AIA”), references are therefore to 

the pre-AIA version of 35 U.S.C. § 102. See Pub L. No. 

112-29, 125 Stat. 284 (2011); 35 U.S.C. § 102 (2006). 
8 C.R. BARD, INC. v. ANGIODYNAMICS, INC. 

ports. Finally, Bard argues that the Board improperly 

entered a new ground of rejection in violation of the 

Administrative Procedure Act (“APA”). We address each 

argument in turn.

1. Printed Publication

A reference qualifies as a printed publication under § 102(b) if the reference was “sufficiently accessible to 

the public interested in the art.” Blue Calypso, LLC v. 

Groupon, Inc., 815 F.3d 1331, 1348 (Fed. Cir. 2016). 

“A reference is considered publicly accessible if it was 

‘disseminated or otherwise made available to the extent 

that persons interested and ordinarily skilled in the 

subject matter or art exercising reasonable diligence, can 

locate it.’” In re Lister, 583 F.3d 1307, 1311 (Fed. Cir. 

2009) (quoting Kyocera Wireless corp. v. ITC, 545 F.3d 

1340, 1350 (Fed. Cir. 2008)). Public accessibility is determined case-by-base depending on the “facts and circumstances surrounding the reference’s disclosure to 

members of the public.” Id. Whether a reference ultimately qualifies as a printed publication is a question of 

law based on underlying findings of fact. Blue Calypso, 

815 F.3d at 1348. 

Bard challenges the Board’s determination that a certain reference, IsoMed Constant-Flow Infusion System

(“IsoMed”), is a “printed publication” under 35 

U.S.C. § 102(b).

IsoMed is a clinical reference guide that was developed by third party Medtronic, Inc. “for physicians and 

allied professionals who care for patients using” Medtronic’s implantable reciprocating IsoMed pump device “for 

hepatic arterial infusion of chemotherapeutic agents.” 

J.A. 512. The guide bears a 2000 copyright date and 

indicates that it was revised in September 2000, years 

before the asserted patents’ March 2005 priority date. 
C.R. BARD, INC. v. ANGIODYNAMICS, INC. 9

Analyzing the content of the guide, the Board found 

that the guide was prepared “for distribution to physicians and allied professionals rather than for internal or 

restricted use within Medtronic.” ’302 Decision, 2016 WL 

923521, at *6.5 The Board also considered the declaration 

of Hank LaForce, a sales representative of a medical 

products company later acquired by AngioDynamics. 

LaForce said that, beginning in or around January 2001, 

his employer “co-promoted” the IsoMed device with Medtronic. J.A. 1665. LaForce also stated that he “personally 

distributed numerous copies of the . . . publication to 

interested medical professionals, including doctors, nurses, surgeons, radiologists, oncologists, and other medical 

clinicians,” and that there “were no restrictions or limitations on distribution of the . . . publication.” Id. Although 

the Board noted that the declaration included “limited” 

detail and that LaForce may have been biased “due to 

current employment by” AngioDynamics, it nevertheless 

determined that the guide was publicly accessible as of 

January 2001. ’302 Decision, 2016 WL 923521, at *6. 

Based on the current state of the record and the 

Board’s articulated findings of fact, we cannot determine 

whether the Board’s findings are supported by substantial 

evidence. 

On the one hand, the Board noted that the IsoMed 

guide bears some indicia of a public-facing document. For 

example, it lists phone numbers for customer and technical service departments within Medtronic as well as

contact information for various Medtronic offices. See id. 

This suggests that the publication served as a reference 

 

5 As Bard points out, the Board’s decisions on this 

issue for the ’302 and ’022 patents “are largely word-forword identical . . . [and] stand or fall together.” Appellant 

Br. 20. We therefore only cite the Board’s decision relating to the ’302 patent unless otherwise noted.
10 C.R. BARD, INC. v. ANGIODYNAMICS, INC. 

guide for healthcare professionals outside of Medtronic. 

While Bard criticizes the Board for relying on the document, the contents of a document can be relevant to 

whether the document was publicly accessible. See, e.g., 

Nobel Biocare Servs. AG v. Instradent USA, Inc., No. 

2017-2256, 2018 WL 4354227, at *6–9 (Fed. Cir. Sept. 13, 

2018) (“[T]he ABT Catalog has the date ‘March 2003’ on 

its cover. Although the ABT Catalog’s date is not dispositive of the date of public accessibility, its date is relevant 

evidence that supports the Board’s finding of public 

accessibility . . . .”).

On the other hand, the only other evidence in the 

record—the LaForce declaration—does little to establish 

that the document was publicly accessible. At most, 

LaForce says he distributed an unidentified number of 

copies on an unidentified date to unidentified people. The 

Board’s findings regarding the declaration, moreover, are 

ambiguous. For example, the Board acknowledged 

LaForce’s statement that he distributed copies of IsoMed 

without making an express finding that he did so. See 

’302 Decision, 2016 WL 923521, at *6

(“LaForce . . . testifies to having distributed ‘numerous 

copies’ of IsoMed . . . .”). Instead, the Board seemed to 

credit LaForce’s testimony that clinicians could request

copies from Medtronic. See id. (“LaForce infers that 

IsoMed was available to any member of the relevant 

public who requested a copy . . . we find that LaForce’s 

inference is sound.”). It is therefore unclear whether and 

to what extent the Board relied on or credited LaForce’s 

testimony regarding his purported distribution. See, e.g., 

id. at *10 (“We find that IsoMed was available to the 

relevant public as of on or around January 2001; and that 

interested members of the relevant public could have 

obtained a copy of IsoMed if they wanted to obtain one. 

Based on these findings, we find by a preponderance of 
C.R. BARD, INC. v. ANGIODYNAMICS, INC. 11

the evidence that IsoMed was publically [sic] accessible on 

or around January 2001.” (citations omitted)).6 It is also 

unclear whether, even if a member of the relevant public 

could have requested it, there is any evidence that they 

would have had a reason to do so.

AngioDynamics asks us to assume the Board found 

that IsoMed was distributed along with IsoMed devices. 

See Oral Arg. at 20:22–23:20 (“Counsel: Medical devices 

are typically sold with product manuals. Court: Where is 

that in the record? Counsel: The Board inferred it . . . .”), 

available at 

http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20

17-1851.mp3. We see no factual findings or record evidence to support this. LaForce’s declaration says nothing 

about whether Medtronic distributed the guide and device 

together or whether it was even common practice for 

medical device manufactures to do so. This case therefore 

stands in contrast to In re Enhanced Security Research, 

LLC, 739 F.3d 1347 (Fed. Cir. 2014), on which AngioDynamics relies. There, the Board credited a declaration 

explaining that the manual at issue was associated with a 

software product “sold to or installed for approximately a 

dozen customers.” Id. at 1354–55. In view of the manual’s inscription date, the declaration, and evidence of the 

software product’s advertisements published during the 

relevant timeframe directing relevant consumers to reach 

out for more information, we concluded that substantial 

evidence supported the Board’s finding that the manual

constituted publicly-available prior art under § 102(a)(1). 

Id. And, we found that there was a sufficient basis to 

 

6 The Board’s decisions on rehearing with respect to 

the ’302 patent and the ’022 patent do not mention the 

LaForce declaration at all. See generally ’302 Rehearing 

Decision, 2017 WL 542597; ’022 Rehearing Decision, 2017 

WL 766740. 
12 C.R. BARD, INC. v. ANGIODYNAMICS, INC. 

conclude that consumers would have had a reason to 

reach out and request it. Id. Here, in the absence of clear 

factual findings, we decline to decide whether the present 

record would support the same inference. 

Accordingly, we vacate the Board’s determination that 

IsoMed qualifies as a printed publication and remand for 

additional factfinding on this score.7 

2. Claim Construction

We review the Board’s claim constructions de novo except to the extent they depend on underlying factual 

findings involving extrinsic evidence. Teva Pharm. USA, 

Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841–42 (2015).

As described above, the radiopaque claims of the ’302 

and ’022 patents require the recited access port to contain 

a radiopaque “alphanumeric message indicating that the 

assembly is power injectable.” Claims 8–9 of the ’615 

patent include a similar limitation. The Board determined that these claims are broad enough to encompass 

both power injectable and non-power injectable ports. 

See, e.g., ’615 Decision, 2016 WL 1166545, at *13. Bard 

contends that these claims require the access port to be 

power injectable and that the Board erred by holding

otherwise. We agree.

“As with any claim construction analysis, we begin 

with the claim language.” In re NTP, Inc., 654 F.3d 1279, 

1288 (Fed. Cir. 2011) (citing Phillips v. AWH Corp., 415 

F.3d 1303, 1312 (Fed. Cir. 2005) (en banc)). Here, the 

plain language of the radiopaque claims is clear. For 

example, claim 5 explains that the alphanumeric message 

“indicat[es] that the assembly is power injectable.” ’302 

 

7 We express no opinion as to whether the Board 

may or should consider additional evidence to support this 

additional factfinding. 
C.R. BARD, INC. v. ANGIODYNAMICS, INC. 13

patent, col. 13, ll. 8–19. This phrasing is definitional. 

Claim 8 of the ’615 patent likewise explains that the 

recited structural feature “identif[ies] the access port as 

being power injectable.” ’615 patent, col. 14, ll. 1–3. We 

therefore interpret these claims to “mean precisely what 

they say,” Central Admixture Pharmacy Services, Inc. v. 

Advanced Cardiac Solutions, P.C., 482 F.3d 1347, 1355 

(Fed. Cir. 2007), and we construe them to mean that the 

claimed access port is power injectable.

To justify its contrary construction, the Board concluded that the claims merely require that the access port 

be labeled as power injectable. The Board based this 

conclusion on its view that “it was within the level of 

ordinary skill in the art to falsely label an assembly that 

was not power injectable.” ’302 Decision, 2016 WL 

923521, at *15. But the Board provided no reason why 

the claims would contemplate a falsely labeled access 

port. As the record evidence makes clear, power injecting 

a non-power injectable port can cause serious injury or 

death. Distinguishing between the two types of ports is 

the crux of what the patents claim. The Board’s reading 

of the claims as reaching falsely labeled ports is therefore 

unreasonably broad. See PPC Broadband, Inc. v. Corning 

Optical Commc’ns RF, LLC, 815 F.3d 747, 755 (Fed. Cir. 

2016) (“We will not adopt the position . . . that the broadest reasonable construction is always the one which 

covers the most embodiments. Above all, the broadest 

reasonable interpretation must be reasonable in light of 

the claims and specification.”). 

That the claims cover power injectable ports, specifically, is further evidenced by the prosecution history of 

the ’302 patent. For example, claim 5 originally required 

“at least one feature [that] conveys information indicative 

of an attribute of the assembly.” J.A. 8400. After the 

Examiner rejected the claim, the Examiner and the 

applicant conducted an interview in which they 

“[d]iscussed potential amendments to independent claims 
14 C.R. BARD, INC. v. ANGIODYNAMICS, INC. 

to . . . further describ[e] the port and the attribute as 

being power injectable.” J.A. 8598. The applicant then 

amended the claim to add the alphanumeric message 

limitation at issue here. J.A. 8602. The Examiner ultimately allowed this claim, stating that “the prior art of 

record fails to disclose either singly or in combination the 

claimed device of an implantable access port that has a 

radiopaque message to indicate that this port is specifically power injectable.” J.A. 8775 (emphasis added). This 

exchange demonstrates that the applicant and the Examiner both believed the claim language covered power 

injectable ports, which is consistent with the plain language of the claim. See Phillips, 415 F.3d at 1317 (noting 

that the “prosecution history provides evidence of how the 

PTO and the inventor understood the patent”); MasterMine Software, Inc. v. Microsoft Corp., 874 F.3d 1307, 

1312 (Fed. Cir. 2017) (finding that a statement “presented 

by the inventor during patent examination is relevant to 

claim construction, for the role of claim construction is to 

capture the scope of the actual invention that is disclosed, 

described, and patented,” even if the statement does not 

amount to a disclaimer).

Accordingly, we vacate the Board’s obviousness rulings regarding claims 5–10 of the ’302 patent, claims 1–20 

of the ’022 patent, and claims 8–9 of the ’615 patent. We 

remand for the Board to determine, if appropriate,8

whether, under the correct construction, these claims are 

obvious in view of the prior art of record.9 

 

8 This remand assumes that the Board first finds 

sufficient evidence in the record upon which it can base 

relevant findings on the question of whether the IsoMed 

reference constitutes prior art as to these patents.

9 We also decline to address, at this point, whether 

the alphanumeric message limitation, as properly construed, ought to be afforded patentable weight under the 
C.R. BARD, INC. v. ANGIODYNAMICS, INC. 15

3. New Grounds for Rejection

Finally, Bard argues that the Board improperly relied 

on new grounds to reject claims 1–5 and 8–10 of the ’615 

patent. We disagree.

Under the APA, the Patent Office “must assure that 

an applicant’s petition is fully and fairly treated at the 

administrative level.” In re Kumar, 418 F.3d 1361, 1367 

(Fed. Cir. 2005). “This framework limits the Board’s 

ability to rely on different grounds than the examiner.” 

Rambus Inc. v. Rea, 731 F.3d 1248, 1255 (Fed. Cir. 2013). 

But it does not require the Board to merely recite and 

repeat an examiner’s findings on review. “The ultimate 

criterion is whether the appellant has had before the PTO 

a ‘fair opportunity to react to the thrust of the rejection.’” 

Id. 

Here, the Examiner relied, in relevant part, on two 

references to invalidate the claims at issue: (1) European 

Patent Application No. 1 238 682 to Reuter (“Reuter”) and 

(2) U.S. Patent No. 5,919,160 to Sanfilippo (“Sanfilippo”). 

Reuter discloses an access port with a base plate having 

concave cutouts that can be used to securely handle the 

port during implantation. Sanfilippo discloses a dualreservoir port having curved indentations on the sides 

thereof that allow a doctor to determine, via palpation,

the reservoirs’ relative orientation. The Examiner found 

that it would have been obvious to use Reuter’s cutouts

“to impart to the medical technician the type of implanted 

 

printed matter doctrine. Even if entitled to patentable 

weight, the Board would still need to determine whether 

the claim as a whole is obvious in light of any relevant 

prior art. Since that question likely will be addressed in 

the Board’s obviousness assessment, or be mooted by a 

finding that IsoMed is not prior art, we need not reach it 

now.
16 C.R. BARD, INC. v. ANGIODYNAMICS, INC. 

access port” and that general knowledge in the art, as 

evidenced by Sanfilippo, “includes relaying information 

regarding the port to the medical technician via palpation.” J.A. 7641. The Examiner emphasized that incorporating Sanfilippo into Reuter “would be an obvious 

extension of this knowledge in the art.” J.A. 7642. These 

statements suggest the Examiner found that Sanfilippo 

could be used to modify Reuter’s cutouts to be identifiable 

by palpation.

The Board likewise found that it would have been obvious to modify Reuter in this respect based on Sanfilippo. 

For example, the Board explained that “Sanfilippo would 

have provided one of ordinary skill in the art reason to 

lower the profile of Reuter’s access port, by shortening the 

housing, so as to enable a physician or allied professional 

to feel the concave side surfaces formed by the cut-outs 

after implantation.” ’615 Decision, 2016 WL 1166545, at 

*12. As the Board noted, this analysis at most “merely 

made explicit what was implicit in the Examiner’s reasoning.” ’615 Rehearing Decision, J.A. 157. We agree. The 

Board’s ruling does not amount to a new rejection.

Bard asserts that even if the Board’s rejection was

procedurally proper, it was still erroneous. According to 

Bard, there is no evidence in the record explaining why 

one skilled in the art would have been motivated to apply 

the teachings of Sanfilippo to modify Reuter. Bard also 

maintains that, even if there were such a motivation, the 

Board failed to address whether there would have also 

been a reasonable expectation of success in making these 

modifications. 

We review the Board’s findings on these factual questions for substantial evidence. Intelligent Bio-Sys., Inc. v. 

Illumina Cambridge Ltd., 821 F.3d 1359, 1366 (Fed. Cir. 

2016). As explained above, the Board found that the prior 

art, including Sanfilippo, taught using structural features 

to identify the type of port being implanted. See ’615 
C.R. BARD, INC. v. ANGIODYNAMICS, INC. 17

Decision, 2016 WL 1166545, at *11 (“Sanfilippo also 

taught that these curved indentions might be used to 

identify a particular type of access port . . . .”). It went on 

to conclude that this prior art would have provided ample 

motivation for a skilled artisan to modify Reuter and 

“enable a physician or allied professional to feel the 

concave side surfaces formed by the cut-outs 9, 10 after 

implementation.” Id. at *12. The Board also concluded 

that if this were done, “the physician or allied professional 

could use the cut-outs to identify the particular type of 

access port in accordance with the teachings of Sanfilippo.” Id. Substantial evidence supports these determinations. We therefore affirm the Board’s ruling invalidating 

claims 1–5 and claim 10 of the ’615 Patent. As to claims 

8–9, we remand for the Board to determine whether, 

under the correct construction, these claims are obvious in 

view of the prior art of record.

B. AngioDynamics’ Cross-Appeal

In its cross-appeal, AngioDynamics argues that the 

Board’s rulings upholding the validity of claims 1–4 of the 

’302 patent and claims 6–7 of the ’615 patent should be 

reversed. With respect to the ’302 patent claims, AngioDynamics argues that the Board erred in finding that 

IsoMed does not disclose a radiopaque alphanumeric 

message on a “housing base.” With respect to the ’615 

patent claims, AngioDynamics argues that the Board 

erred in concluding that it would not have been obvious to 

modify Reuter to add a fourth concave side. We address 

each argument in turn.

1. Housing Base Limitation 

AngioDynamics first challenges the Board’s finding 

that IsoMed does not disclose an alphanumeric message 

on a “housing base,” as required by certain radiopaque 

claims. According to AngioDynamics, that finding was 

predicated on an erroneous construction of the “housing 
18 C.R. BARD, INC. v. ANGIODYNAMICS, INC. 

base” limitation. Even assuming without deciding that 

IsoMed qualifies as a printed publication, we disagree.

Some of the radiopaque claims recite a “housing having a housing base defining a bottom wall of at least one 

reservoir, and an outwardly facing bottom surface.” ’302 

patent, col. 12, ll. 57–67. These claims also require the 

radiopaque alphanumeric message be inscribed on the 

housing base. The Board construed this limitation to 

mean that the housing base defines a bottom wall of the 

reservoir and an outwardly facing bottom surface of the 

access port. See ’302 Decision, 2016 WL 923521, at 13–14. 

This construction is reasonable in light of the claims 

themselves and the patent as a whole. For example, 

claim 3, which depends from claim 1, requires that “the 

radiopaque alphanumeric message [be] applied to the 

outwardly facing bottom surface of the housing base.” 

’302 patent, col. 13, ll. 3–5 (emphasis added). This language makes clear that the outwardly facing bottom 

surface of claim 1 is a feature of the housing base, not just 

the housing. See Phillips, 415 F.3d at 1314–15 (noting 

that dependent claims can add helpful context for the 

meaning of independent claims). It also forecloses the

argument raised by amicus curiae Medical Components, 

Inc. (“MedComp”) that the “housing base” and “an outwardly facing bottom surface” are two separate claim 

limitations based on the comma separating these parts of 

the claim.

The IsoMed device includes, among other things, a 

reservoir, a partition separating the reservoir from a 

propellent chamber that is filled with pressurized gas, 

and a titanium shell. The reservoir expands within the 

shell as pressure changes. In its most expanded state, the 

reservoir’s lower wall abuts the lower wall of the shell. 

The Board determined that IsoMed’s shell cannot be a 

“housing base” because, although it defines an “outwardly 

facing bottom surface” of the access port, it does not define 
C.R. BARD, INC. v. ANGIODYNAMICS, INC. 19

“a bottom wall of the reservoir” as required under its 

reading of the claims. The Board determined that the 

reservoir’s bottom wall is likewise not a “housing base” 

because it does not define “an outwardly facing bottom 

surface” of the access port. The Board therefore properly 

concluded that the IsoMed device does not have a structure defining both the bottom wall of the reservoir and

the outwardly facing bottom surface of the port. See ’302 

Decision, 2016 WL 923521, at 13–14. 

AngioDynamics insists that the bottom wall of the 

reservoir is defined by the outwardly facing shell. To 

overcome the fact that a partition separates the bottom 

wall of the reservoir from the shell, AngioDynamics

argues that the partition is simply an additional, intermediate structure permitted by the “comprising” language 

of the claims. But as the Board correctly explained, “the 

fact that the bottom wall of the titanium shell . . . set[s] a 

limit beyond which the reservoir cannot expand does not 

imply that the bottom wall of the shell defines a bottom 

wall of at least on reservoir in the ordinary sense of the 

language.” ’302 Rehearing Decision, 2017 WL 542597, at 

*4 (internal quotation marks and brackets omitted). The 

shell therefore does not satisfy the claim.

AngioDynamics also argues that the Board’s reading 

of these claims is inconsistent with its reading of claims 

5–6 and 8–10 of the ’302 patent. When analyzing those 

claims, the Board stated that “it is reasonable to interpret 

the term ‘housing’ sufficiently broadly to encompass 

[IsoMed’s] combination of the titanium shell with the 

propellant chamber and pump device as well as other 

structure which might contact the reservoir.” ’302 Decision, 2016 WL 923521, at *13. And, in its decision on 

rehearing, the Board stated with respect to those claims 

that “the term ‘defining’ in the ’302 patent is sufficiently 

broad to encompass structures that do not contact the 

reservoir directly; and the reservoir cannot expand so as 

to exceed the confines of the interior of the shell.” ’302 
20 C.R. BARD, INC. v. ANGIODYNAMICS, INC. 

Rehearing Decision, 2017 WL 542597, at *6. AngioDynamics asserts that the Board’s broad reading of “housing” is inconsistent with its narrow reading of “housing 

base.” We see no inconsistency. While the port housing 

encompasses a number of components, as the claims make 

clear, the housing base, which is one part of the housing, 

does not. 

We have considered AngioDynamics’ and MedComp’s 

remaining arguments—including those invoking judicial 

estoppel—and find them unpersuasive. We therefore 

affirm the Board’s ruling upholding claims 1–4 of the ’302 

patent.

2. Obviousness

AngioDynamics next challenges the Board’s ruling 

upholding claims 6–7 of the ’615 patent. According to 

AngioDynamics, that ruling is predicated on an incorrect 

reading of the claims and an erroneous application of 

obviousness law. We disagree.

Claim 6 of the ’615 patent requires four “concave side 

surfaces” in the body of the access port. ’615 patent, col. 

13, ll. 13–16. Prior art reference Reuter discloses three 

cutouts in its base plate. The Examiner concluded that it 

would have been obvious to modify Reuter to add a fourth 

concave side because doing so would have resulted in 

easier and cheaper manufacturing. The Board rejected 

this conclusion, noting the absence of any evidence to 

support the Examiner’s view. The Board explained that 

adding an additional concave side to Reuter “would have 

required one of ordinary skill to add a cut-out to Reuter’s 

base plate 2, which offered no apparent functional advantage.” ’615 Decision, 2016 WL 1166545, at *15. While 

the Board acknowledged that other references in the art 

contained four concave surfaces, it emphasized the lack of 

evidence to support a motivation for combining these 

references with Reuter in this way. Id. As noted above, 

we review the Board’s findings on these factual questions
C.R. BARD, INC. v. ANGIODYNAMICS, INC. 21

for substantial evidence. Intelligent Bio-Sys., 821 F.3d at 

1366.

AngioDynamics argues that the Board erred in its obviousness analysis by requiring the prior art to teach 

palpating concave surfaces post-implantation. We disagree. As the Board correctly observed, while the prior art 

provides reasons why it would be advantageous to have 

concave cutouts generally, it does not suggest that having 

such cutouts on all sides of an access port is advantageous. Reuter itself explains that its cutouts are used so 

that the port “can be handled securely during implantation and especially during the fastening of the catheter.” 

J.A. 6976. There is no reason why this benefit cannot be 

achieved with only three cutouts. Another reference 

discussed by the Board, Montalvo, states that “[t]he 

overall size and shape of the infusion port and its implanted location within the patient are chosen for relatively simple and accurate palpable identification through

the skin.” J.A. 7078. This reference clearly suggests that 

the geometry of the port can be chosen to optimize palpable identification, but it does not suggest that having four 

concave sides would achieve that benefit. Neither Reinicke nor Sanfilippo provide such a motivation either. The 

fact that the prior art did not teach palpation using 

concave surfaces post-implantation therefore undermines 

the notion that a skilled artisan would be motivated to 

modify Reuter to add a fourth concave cutout, which is 

what the Board found. ’615 Decision, 2016 WL 1166545, 

at *15–16.

AngioDynamics’ argument that the Board required 

the prior art to disclose specific functionality even though 

the art disclosed relevant structure similarly fails. Again, 

the Board discussed the functionality of the prior art to

explain why a skilled artisan would not necessarily modify Reuter based on Reinicke. See ’615 Rehearing Decision, J.A. 152 (“These structural and functional 

differences [between Reinicke and Reuter] reinforce the 
22 C.R. BARD, INC. v. ANGIODYNAMICS, INC. 

absence of an apparent reason why one of ordinary skill in 

the art might have altered Reuter’s access port in the 

fashion claimed in claim 6.”). Such a discussion is appropriate. See, e.g., Anacor Pharm., Inc. v. Iancu, 889 F.3d 

1372, 1385 (Fed. Cir. 2018) (“The obviousness inquiry 

often depends on whether there is evidence demonstrating 

a nexus between structural similarities (or dissimilarities) 

and functional similarities (or dissimilarities).”). 

AngioDynamics’ argument that the Board failed to 

consider the collective teachings of the prior art is also 

without merit. The Board discussed the prior art extensively. See, e.g., ’615 Rehearing Decision, J.A. 150–154. 

It went on to conclude that the art did not provide a 

motivation to modify Reuter by adding a fourth concave 

edge. See, e.g., id. at 153 (“The mere presence of such 

concave surfaces, without indication of their function, 

would not have provided one of ordinary skill in the art 

reason to add a fourth concave cut-out to the base plate of 

the access port described by Reuter.”). This finding is 

supported by substantial evidence. 

Finally, AngioDynamics argues that modifying a geometric shape was well within the capabilities of a skilled 

artisan and would have been a simple design choice. But

the Board concluded that the record evidence did not 

support this view. Id. at 150–51 (“Neither the Examiner 

nor the Requester has adequately explained how adding a 

concave cut-out to the side of the base plate 2 opposite the 

catheter connector 8 would have improved a surgeon’s 

ability to handle the access port.”). It also noted that the 

evidence did not suggest modifying Reuter in this way 

would have decreased production costs as to justify an 

additional manufacturing step. See ’615 Decision, 2016 

WL 1166545, at *15. (“The Examiner has not provided 

any persuasive evidence or technical reasoning to support 

the finding that adding an additional cut-out . . . would 

have resulted in greater ease of manufacturing or reduced 
C.R. BARD, INC. v. ANGIODYNAMICS, INC. 23

cost in processing.”). We find no reason to adopt a different view given the findings of the Board. 

In sum, the Board’s rulings upholding claims 6–7 of 

the ’615 patent are supported by substantial evidence and 

are therefore affirmed. 

III. CONCLUSION

We have considered the parties’ remaining arguments 

and find them unpersuasive. For the reasons stated 

above, we vacate the Board’s ruling that IsoMed qualifies 

as a printed publication and remand for the Board to 

clarify its factual findings. Additionally, we reverse the 

Board’s anticipation rulings, vacate its obviousness rulings regarding claims 5–10 of the ’302 patent, claims 1–20 

of the ’022 patent, and claims 8–9 of the ’615 patent, and 

remand for the Board to determine whether, under a 

construction requiring the ports to be power injectable, 

these claims are obvious in view of the prior art of record, 

which may or may not include IsoMed. We affirm all 

other aspects of the Board’s rulings.

AFFIRMED IN PART, VACATED IN PART, 

REVERSED IN PART, AND REMANDED IN CASE 

NOS. 17-1851, 17-1906, AND 17-1931.

AFFIRMED IN PART, VACATED IN PART, AND 

REMANDED IN CASE NOS. 17-1943 AND 17-1865.

COSTS

No costs.