Google LLC v. DDC Tech., LLC, No. 2025-1315 (Fed. Cir. Nov. 5, 2026)

In our Case of the Week, the Federal Circuit affirmed three inter partes review decisions holding that Google had failed to establish the obviousness of DDC Tech’s patents covering smartphone-based virtual reality viewers. Among other things, the court rejected Google’s argument that the Board violated the Administrative Procedure Act by unfairly “surprising” Google with an implicit claim construction.

The case concerned DDC Tech’s U.S. Patent Nos. 9,420,075; 10,528,199; and 11,093,001 covering smartphone-based virtual reality viewers. Some early smartphone-based VR viewers worked by enclosing a smartphone inside a housing and using optical lenses to create a 3D viewing experience. While this arrangement allowed the smartphone to function as a VR display, it obstructed the user’s access to the touchscreen. The three patents at issue, addressed that problem through an externally accessible input mechanism that could contact the enclosed smartphone’s touchscreen and generate a detectable “touch event.”

Google challenged the patents as obvious over two prior art references. The first reference, a patent to “Kondo,” described a smartphone viewer with a remote touch circuit allowing the user to operate the phone from outside the viewer. The second reference, “Chu,” described a mechanical button arrangement for operating a touchscreen inside a waterproof housing. The Board found some, but not all, of the challenged claims unpatentable, and Google appealed the rulings concerning the surviving claims to the Federal Circuit.

One issue on appeal concerned the claim construction of a “linkage element” that is “made from flexible material.”  In the proceedings below, Google argued that a spring and a shaft in Chu’s touchscreen mechanism together satisfied that requirement, and that the spring itself was flexible. The Board agreed that the spring was flexible but not that the limitation was present in the prior art, because Google did not show that the shaft itself was made from a flexible material. The Board reasoned that the claim required an entire “linkage element” to be made of flexible materials, as opposed to only part of the element.

On appeal, Google challenged that interpretation, and also argued that the Board violated the APA by adopting an allegedly unexpected claim construction in its final written decision. The Federal Circuit disagreed, holding that Board’s position did not amount to an APA violation. The Court distinguished its prior decision in SAS Institute, Inc. v. ComplementSoft, LLC, where the it had held that a change in claim constructions between the Board’s institution decision and its final written decision violated the APA because in that case, neither party could “anticipat[e] that already interpreted terms were actually moving targets, and it [was] thus unreasonable to expect that [the parties] would have briefed or argued, in the alternative, hypothetical constructions not asserted by their opponent.”

Here, the Court held that “Google did not face such undue surprise,” because it knew the Board’s position on the relevant claim language “was potentially a moving target.” The Court noted the Board’s institution decision neither construed “linkage element … made from a flexible material” nor accepted Google’s position that the element need not be made exclusively from flexible material. Instead, it expressly invited further argument and evidence on that limitation. However, Google failed to address the claim language further following institution, and on these facts, the Federal Circuit found that “[t]he Board cannot be faulted under the APA for Google’s failure to develop its position.” Accordingly, the Court rejected Google’s APA challenge.

Google’s other challenges on appeal were also unsuccessful. Google argued that the Board’s findings on objective indicia of non-obviousness lacked sufficient factual support, but the Court concluded that the record adequately supported those findings. Google also challenged the weight the Board gave that evidence in its overall obviousness analysis. Although the combined prior art disclosed the relevant claim limitations and the Board found a reason to combine the references, however, the Court agreed that the strong copying evidence and moderately weighted industry praise could outweigh Google’s prior-art showing, providing sufficient evidence for the Board’s conclusion that Google had not established obviousness. The Court also rejected Google’s other challenges to the Board’s claim constructions.

Accordingly, the Federal Circuit affirmed the Board’s ruling that Google failed to prove certain claims of the ’075, ’199, and ’001 patents unpatentable.  The full opinion can be found here.

By Adam Astorina

This article does not constitute legal advice. For legal advice that applies to your situation, you should contact an attorney.