Case: 18-1456    Document: 90    Page: 1   Filed: 09/25/2020




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                      APPLE INC.,
                       Appellant

                            v.

                  VOIP-PAL.COM, INC.,
                        Appellee

     ANDREI IANCU, UNDER SECRETARY OF
   COMMERCE FOR INTELLECTUAL PROPERTY
    AND DIRECTOR OF THE UNITED STATES
      PATENT AND TRADEMARK OFFICE,
                   Intervenor
             ______________________

                   2018-1456, 2018-1457
                  ______________________

     Appeals from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in Nos. IPR2016-
 01198, IPR2016-01201.
                  ______________________

                Decided: September 25, 2020
                  ______________________

     MARK ANDREW PERRY, Gibson, Dunn & Crutcher LLP,
 Washington, DC, argued for appellant. Also represented
 by BRIAN BUROKER, ANDREW WILHELM; RYAN IWAHASHI,
 Palo Alto, CA; PAUL R. HART, Erise IP, P.A., Greenwood
 Village, CO; ERIC ALLAN BURESH, ADAM PRESCOTT SEITZ,
 Overland Park, KS.
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 2                            APPLE INC.   v. VOIP-PAL.COM, INC.




    LEWIS EMERY HUDNELL, III, Hudnell Law Group PC,
 Mountain View, CA, argued for appellee.

     DENNIS FAN, Appellate Staff, Civil Division, United
 States Department of Justice, Washington, DC, argued for
 intervenor. Also represented by MELISSA N. PATTERSON,
 ETHAN P. DAVIS; THOMAS W. KRAUSE, FARHEENA YASMEEN
 RASHEED, DANIEL KAZHDAN, Office of the Solicitor, United
 States Patent and Trademark Office, Alexandria, VA.
                 ______________________

     Before PROST, Chief Judge, REYNA and HUGHES, Circuit
                            Judges.
 REYNA, Circuit Judge.
      In two consolidated appeals, Apple Inc. challenges the
 final written decisions of the Patent Trial and Appeal
 Board that certain claims of Voip-Pal.com, Inc.’s patents
 were not invalid for obviousness. Apple also challenges the
 Board’s sanctions determinations. We find no error in the
 Board’s non-obviousness determinations or in its sanctions
 rulings. We vacate and remand the Board’s final written
 decisions as to nineteen claims on mootness grounds. We
 affirm as to the remaining claims.
                         BACKGROUND
                               I
     Appellee Voip-Pal.com, Inc. (“Voip-Pal”) owns U.S. Pa-
 tent Nos. 8,542,815 (“the ’815 patent”) and 9,179,005 (“the
 ’005 patent”) (collectively, the “Asserted Patents”), both of
 which are titled “Producing Routing Messages for Voice
 Over IP Communications.” The Asserted Patents describe
 the field of invention as “voice over IP communications and
 methods and apparatus for routing and billing” and relate
 to routing communications between two different types of
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 APPLE INC.   v. VOIP-PAL.COM, INC.                           3



 networks—public and private. See ’815 patent at 1:12–13,
 1:15–21.
     In February 2016, Voip-Pal sued appellant Apple Inc.
 (“Apple”) for infringement of the Asserted Patents in the
 United States District Court for the District of Nevada.
 Voip-Pal.com, Inc. v. Apple Inc., No. 2:16-cv-260 (D. Nev.
 Feb. 9, 2016). In June 2016, Apple petitioned for inter
 partes review (“IPR”) of several claims of the Asserted Pa-
 tents in two separate proceedings before the Patent Trial
 and Appeal Board (“Board”)—IPR2016-01198 and
 IPR2016-01201. The Nevada district court stayed Voip-
 Pal’s infringement action pending the IPRs.
     In its IPR petitions, Apple argued that the claims were
 obvious over the combination of U.S. Patent No. 7,486,684
 B2 (“Chu ’684”) and U.S. Patent No. 8,036,366 (“Chu ’366”).
 Apple relied on Chu ’684 as a primary reference for its in-
 frastructure, call classifying, and call routing disclosures.
 Apple relied on Chu ’366 as a secondary reference for its
 caller profile and dialed digit reformatting disclosures.
     A panel of the Board (Benoit, Pettigrew, Margolies, JJ.)
 (“Original Panel”) instituted review in both proceedings.
 In June 2017, the Original Panel was replaced by a second
 panel (Cocks, Chagnon, Hudalla, JJ.) (“Interim Panel”) for
 reasons not memorialized in the record.
     During both IPR proceedings, Voip-Pal’s former Chief
 Executive Officer, Dr. Thomas E. Sawyer, sent six letters
 to various parties, copying members of Congress, the Pres-
 ident, federal judges, and administrative patent judges at
 the Board. Dr. Sawyer did not copy or send Apple the let-
 ters. The letters criticized the IPR system, complained
 about cancellation rates at the Board, and requested judg-
 ment in favor of Voip-Pal or dismissal of Apple’s petition in
 the ongoing Apple IPR proceedings. The letters did not dis-
 cuss the underlying merits of Apple’s IPR petitions.
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 4                              APPLE INC.   v. VOIP-PAL.COM, INC.



      On November 20, 2017, the Interim Panel issued final
 written decisions in both actions, determining all claims to
 be not invalid as obvious over Chu ’684 and Chu ’366. In
 its final written decisions, the Interim Panel found that Ap-
 ple did not provide evidentiary support for Apple’s argu-
 ment on motivation to combine. Additionally, the Interim
 Panel credited Voip-Pal’s expert’s testimony that Chu ’684
 did not have, as Apple argued, a dialing deficiency.
                                II
     Apple then moved for sanctions against Voip-Pal based
 on Sawyer’s ex parte communications with the Board and
 with the United States Patent and Trademark Office. Ap-
 ple argued that Voip-Pal’s ex parte communications vio-
 lated its due process rights and the Administrative
 Procedures Act. Apple requested that the Board sanction
 Voip-Pal by entering adverse judgment against Voip-Pal
 or, alternatively, by vacating the final written decisions
 and assigning a new panel to preside over “constitutionally
 correct” new proceedings going forward.
     After moving for sanctions, Apple appealed the Board’s
 final written decision to this court, giving rise to the instant
 consolidated appeals. Upon Apple’s motion, we stayed the
 appeals and remanded the cases for the limited purpose of
 allowing the Board to consider Apple’s sanctions motions.
 Apple Inc. v. Voip-Pal.com, Inc., Nos. 18-1456, -1457 (Fed.
 Cir. Feb. 21, 2018). For the sanctions proceedings, a new
 panel (Boalick, Bonilla, Tierney, JJ.) (“Final Panel”) re-
 placed the Interim Panel.
     The Final Panel determined that Voip-Pal engaged in
 sanctionable ex parte communications. The Final Panel
 rejected Apple’s request for a directed judgment and Ap-
 ple’s alternative request for new proceedings before a new
 panel. The Final Panel fashioned its own sanction, which
 provided that the Final Panel would preside over Apple’s
 petition for rehearing, which, according to the Final Panel,
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 APPLE INC.   v. VOIP-PAL.COM, INC.                           5



 “achieves the most appropriate balance when considering
 both parties’ conduct as a whole.” J.A. 71.
     The parties proceeded to panel rehearing briefing. The
 Final Panel denied Apple’s petition for rehearing because
 Apple had “not met its burden to show that in the Final
 Written Decision, the [Interim] panel misapprehended or
 overlooked any matter,” J.A. 86, and “[e]ven if [the Panel]
 were to accept [Apple’s] view of Chu ’684 . . . [the Panel]
 would not reach a different conclusion.” J.A. 82. Apple
 then moved our court to lift the limited stay. We lifted the
 stay and proceeded to briefing and oral argument. Apple
 Inc. v. Voip-Pal.com, Inc., Nos. 18-1456, -1457 (Fed. Cir.
 July 3, 2019). We have jurisdiction under 28 U.S.C.
 § 1295(a)(4)(A).
                            DISCUSSION
                                 I
      Before turning to the merits of these appeals, we ad-
 dress a threshold jurisdictional issue Apple raised post-
 briefing. On June 8, 2020, prior to oral argument, Apple
 filed a post-briefing document in both appeals entitled
 “Suggestion of Mootness.” Apple Inc. v. Voip-Pal.com, Inc.,
 Nos. 18-1456 (Fed. Cir. June 8, 2020), ECF No. 79. In that
 submission, Apple contends that our recent ineligibility de-
 termination in Voip-Pal.com, Inc. v. Twitter, Inc., 798
 F. App’x 644 (Fed. Cir. 2020) (“Twitter”), renders the in-
 stant appeals moot and that we must vacate the Board’s
 underlying final written decisions and sanctions orders.
 For the reasons discussed below, we agree in part with Ap-
 ple.
                            A. Twitter
     Shortly after the Interim Panel issued its final written
 decisions in December 2017, the parties agreed to lift the
 stay in the underlying district court litigation. See Voip-
 Pal.com, Inc. v. Apple Inc., No. 2:16-cv-260, ECF No. 37
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 6                             APPLE INC.   v. VOIP-PAL.COM, INC.



 (D. Nev. Jan. 26, 2018). In October 2018, the Nevada dis-
 trict court litigation was transferred to the Northern Dis-
 trict of California, along with three other related cases in
 which Voip-Pal had filed similar complaints alleging in-
 fringement of the same patents. See Voip-Pal.com, Inc. v.
 Apple Inc., 

, 1117 (N.D. Cal. 2019).
     The California district court required Voip-Pal to nar-
 row the number of asserted claims against all parties in all
 cases to the same maximum twenty claims. In March 2019,
 the district court identified two representative claims
 (claim 1 of the ’815 patent and claim 74 of the ’005 patent). 1
 Apple and other defendants filed a consolidated motion to
 dismiss, arguing that the twenty asserted claims were in-
 eligible under 35 U.S.C. § 101. The district court granted
 the motion to dismiss, determining that the representative
 claims were patent ineligible. In March 2020, we affirmed
 the district court’s judgment that the asserted claims were
 patent ineligible. Twitter, 798 F. App’x at 645. We denied
 Voip-Pal’s rehearing request in Twitter.
                   B. Overlapping Claims
      At oral argument, Apple argued, and Voip-Pal did not
 dispute, that these appeals are moot as to Claims 1, 7, 27,
 28, 72, 73, 92, and 111 of the ’815 patent and Claims 49,
 73, 74, 75, 77, 78, 83, 84, 94, 96, and 99 of the ’005 patent
 (collectively, the “overlapping claims”). 2 These nineteen
 overlapping claims were at issue in the underlying IPR pro-
 ceedings and were also deemed patent ineligible in Twitter.



     1   In the Apple IPR proceedings, the representative
 claims were claim 1 of the ’815 and claim 1 of the ’005 pa-
 tent.
     2   See Oral Arg. at 18:06–10, 18:28–35, 19:23–47, No.
 2018-1456, http://www.cafc.uscourts.gov/oral-argument-
 recordings.
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 APPLE INC.   v. VOIP-PAL.COM, INC.                           7



 We agree that these overlapping claims are rendered moot
 in these appeals in light of Twitter.
      Because we have determined that the overlapping
 claims failed the Section 101 threshold in Twitter, Apple
 “no longer has the potential for injury, thereby mooting the
 [obviousness] inquiry” at issue in the instant appeals. Mo-
 menta Pharm., Inc. v. Bristol-Myers Squibb Co., 

, 770 (Fed. Cir. 2019) (“[W]hen the potential for injury
 has been mooted by events, the federal courts are deprived
 of jurisdiction.”). Thus, we vacate-in-part the Board’s final
 written decisions only as to these overlapping claims and
 direct the Board to dismiss Apple’s petitions as to these
 claims. See, e.g., United States v. Munsingwear, Inc., 

, 39–41 (1950) (noting that the “established practice
 . . . in dealing with a civil case from a court in the federal
 system which has become moot while [on appeal] is to re-
 verse or vacate the judgment below and remand with a di-
 rection to dismiss” (emphasis added)). 3

                   C. Nonoverlapping Claims
     We now turn to whether these appeals are moot as to
 the “nonoverlapping claims.” The nonoverlapping claims
 are the fifteen remaining claims at issue in the underlying
 IPR proceedings and were not part of the ineligibility




     3    We recognize that these appeals did not arise from
 a civil case in a federal court but rather from proceedings
 before an administrative agency. This difference in proce-
 dural history does not merit a different remedy. See, e.g.,
 PNC Bank Nat’l Ass’n v. Secure Axcess, LLC, 

(2018) (mem.) (ordering remand for Board to vacate
 order for mootness).
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 8                             APPLE INC.   v. VOIP-PAL.COM, INC.



 determination in Twitter. 4 Apple argues that the question
 of obviousness as to the nonoverlapping claims “appears to
 be moot” in light of Twitter because Apple faces no liability
 for infringing these claims. Suggestion of Mootness at 11
 (emphasis added). Apple argues that “[b]asic principles of
 claim preclusion (res judicata) preclude Voip-Pal from ac-
 cusing Apple” of infringing the nonoverlapping claims in
 future litigation, and thus, Apple can never face infringe-
 ment liability as to these claims.

 Voip-Pal is precluded from asserting these fifteen nonover-
 lapping claims against Apple because they are “essentially
 the same” as the claims held patent ineligible in the Twit-
 ter appeal.

that Voip-Pal effectively
 conceded in the underlying district court litigation that the
 overlapping claims are essentially the same as the
 nonoverlapping claims when Voip-Pal dropped the latter
 claims from the litigation (at the request of the district
 court). We disagree with Apple’s assertion of claim preclu-
 sion.
    Under the doctrine of claim preclusion, “a judgment on
 the merits in a prior suit involving the same parties or their
 privies bars a second suit based on the same cause of ac-
 tion.” Lawlor v. Nat’l Screen Serv. Corp., 

, 326
 (1955) (internal quotation marks omitted). The determina-
 tion of the “precise effect of the judgment[] in th[e] [first]
 case will necessarily have to be decided in any such later
 actions that may be brought.” In re Katz Interactive Call
 Processing Pat. Litig., 

, 1310 n.5 (Fed. Cir.
 2011) (emphasis added). Apple acknowledges that any res
 judicata effect of a first proceeding is “an issue that only a
 future court can resolve.” Appellant’s Br. at 35 (citing



     4   The fifteen nonoverlapping claims are claims 34,
 54, 74, and 93 of the ’815 patent and claims 1, 24–26, 50,
 76, 79, 88, 89, 95, and 98 of the ’005 patent.
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 APPLE INC.   v. VOIP-PAL.COM, INC.                           9



 Matsushita Elec. Indus. Co. v. Epstein, 

, 396
 (1996) (Ginsburg, J., concurring in part and dissenting in
 part) (“A court conducting an action cannot predetermine
 the res judicata effect of the judgment; that effect can be
 tested only in a subsequent action.”) (emphasis added)).
 Thus, any preclusive effects that Twitter could have
 against the same or other parties must be decided in any
 subsequent action brought by Voip-Pal. Until then, any de-
 termination we make as to whether Voip-Pal is claim pre-
 cluded from filing an infringement action concerning the
 nonoverlapping claims—claims that no court has deter-
 mined are patent ineligible—is advisory in nature and falls
 outside of our Article III jurisdiction. See Flast v. Cohen,
 

, 96 (1968) (“[I]t is quite clear that the oldest
 and most consistent thread in the federal law of justiciabil-
 ity is that the federal courts will not give advisory opin-
 ions.”) (internal quotation marks omitted). The question of
 obviousness as to the nonoverlapping claims is thus not
 moot. On these grounds, we deny Apple’s request that we
 vacate the Board’s sanctions order as moot. We maintain
 jurisdiction over both appeals as to the nonoverlapping
 claims and now turn to the merits of the appeals.

                                 II
     Apple challenges the Board’s sanctions order and de-
 nial of rehearing on two grounds. First, Apple argues that
 the Board violated the Administrative Procedures Act
 (“APA”) and its due process rights when the Board imposed
 non-enumerated sanctions for Voip-Pal’s ex parte commu-
 nications. Second, Apple argues that the Board wrongly
 concluded that the challenged claims are not invalid for ob-
 viousness.
     We review the Board’s sanction decisions for an abuse
 of discretion. See Bennett Regulator Guards, Inc. v. Atlanta
 Gas Light Co., No. 2017-1555, 

, at *8
 (Fed. Cir. 2020). The Board abuses its discretion if the
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 10                            APPLE INC.   v. VOIP-PAL.COM, INC.



 sanction “(1) is clearly unreasonable, arbitrary, or fanciful;
 (2) is based on an erroneous conclusion of law; (3) rests on
 clearly erroneous fact findings; or (4) involves a record that
 contains no evidence on which the Board could rationally
 base its decision.” Abrutyn v. Giovanniello, 

,
 1050–51 (Fed. Cir. 1994). This court “review[s] contentions
 that rights of due process have been violated de novo.” Ad-
 ams v. Dep’t of Just., 

(Fed. Cir. 2000).
     We review the Board’s ultimate determination of non-
 obviousness de novo and its underlying factual findings for
 substantial evidence. WesternGeco LLC v. ION Geophysi-
 cal Corp., 

, 1326 (Fed. Cir. 2018).
                           A. APA
     Apple argues that the Board violated the APA when
 the Board exceeded its authority under its own sanction
 regulations. According to Apple, upon determining that
 Voip-Pal’s ex parte communications were sanctionable, the
 Board was required to issue one of eight authorized sanc-
 tions under 37 C.F.R. § 42.12(b). Apple noted that the
 Board issued a sanction not explicitly provided by Section
 42.12(b). Thus, Apple argues, the Board exceeded its au-
 thority. We reject this argument.
      The provision at issue provides that:
      (a) The Board may impose a sanction against a
      party for misconduct, . . . .
      (b) Sanctions include entry of one or more of the
      following:
         (1) An order holding facts to have been es-
         tablished in the proceeding;
         (2) An order expunging or precluding a
         party from filing a paper;
         (3) An order precluding a party from pre-
         senting or contesting a particular issue;
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 APPLE INC.   v. VOIP-PAL.COM, INC.                          11



         (4) An order precluding a party from re-
         questing, obtaining, or opposing discovery;
         (5) An order excluding evidence;
         (6) An order providing for compensatory ex-
         penses, including attorney fees;
         (7) An order requiring terminal disclaimer
         of patent term; or
         (8) Judgment in the trial or dismissal of the
         petition.
 37 C.F.R. § 42.12 (emphasis added).
      Key here, Section 42.12(b) uses the term “include,”
 which signifies a non-exhaustive list of sanctions. See, e.g.,
 Marrama v. Citizens Bank of Mass., 

, 373 &
 n.8 (2007) (determining statutory list of ten items preceded
 by term “including” to be “a nonexclusive list”); Talk Am.,
 Inc. v. Mich. Bell Tel. Co., 

, 63 n.5 (2011) (deter-
 mining regulation using phrase “include, but are not lim-
 ited to,” to be “nonexhaustive”); see also Include, Black’s
 Law Dictionary (11th ed. 2019) (“The participle including
 typically indicates a partial list.”). Additionally, reading
 this regulatory provision as non-exhaustive is consistent
 with the context of the Board’s sanctioning regime, which
 affords the Board discretion to impose sanctions in the first
 place. See 37 C.F.R. § 42.12(a)(1) (providing that the Board
 “may impose a sanction” (emphasis added)); Rules of Prac-
 tice for Trials Before the Patent Trial and Appeal Board
 and Judicial Review of Patent Trial and Appeal Board De-
 cisions, 77 Fed. Reg. 48,612, 48,616 (Aug. 14, 2012) (provid-
 ing that “an ex parte communication may result in
 sanctions”) (second emphasis added). The use of “may” em-
 phasized above renders permissible and non-exhaustive
 use of the listed sanctions. Thus, contrary to Apple’s posi-
 tion, Section 42.12(b) does not limit the Board to the eight
 listed sanctions. Rather, the plain reading of Section
 42.12(b) allows the Board to issue sanctions not explicitly
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 12                           APPLE INC.   v. VOIP-PAL.COM, INC.



 provided in the regulation. We therefore hold that the
 plain reading of Section 42.12(b) provides the Board with
 discretion to issue sanctions and that the Board did not
 commit an APA violation when it issued a sanction not ex-
 plicitly listed under Section 42.12.
    To the extent Apple argues that the Board abused its
 discretion by not ordering a sanction of judgment in Apple’s
 favor, see Appellant’s Br. at 31, we reject this argument.
 “[A] sanction which may sound the death knell for im-
 portant [patent] rights and interests . . . should be used as
 a weapon of last, rather than first, resort.” 

(internal quotation marks and citation omit-
 ted). Additionally, “discretion implies a range of permissi-
 ble choices. As long as the tribunal’s choice falls within a
 reasonable range, it cannot constitute an abuse of discre-
 tion.”

decision to (a) allow Apple to
 petition for rehearing before a new panel, and (b) provide
 Apple with a meaningful opportunity to respond to Voip-
 Pal’s letters was a reasonable course of action and one we
 will not disturb.
                       B. Due Process
    Apple also argues that the Board violated Apple’s right
 to due process by refusing to order a de novo proceeding
 before a new panel. We are not persuaded.
      First, Apple did not identify any property interests in
 the course of its due process arguments below. We con-
 clude that its arguments identifying property interests for
 the first time on appeal are waived. See Stone v. FDIC, 

, 1374, 1377 (Fed. Cir. 1999) (noting that there
 can be no due process violation without the deprivation of
 a property interest); see also Patlex Corp. v. Mossinghoff,
 

, 484 (Fed. Cir. 1985) (outlining factors to be
 analyzed when determining a due process violation, the
 first of which is “the private interest that will be affected
 by the official action”) (quoting Mathews v. Eldridge, 424
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 APPLE INC.   v. VOIP-PAL.COM, INC.                          

, 335 (1976)); Cleveland Bd. of Educ. v. Loudermill,
 

, 542–46 (1985) (“The essential requirements
 of due process . . . are notice and opportunity to respond.”).
 In particular, Apple argues for the first time on appeal that
 the preclusive application of collateral estoppel of a final
 written decision necessarily constitutes a deprivation of
 Apple’s property interests and therefore entitles Apple to
 reversal here. Despite Voip-Pal’s statement in its response
 to Apple’s sanctions motion that “there is no property right
 at stake,” J.A. 1674, Apple did not avail itself of the oppor-
 tunity to address the issue in its reply. Apple also argues
 for the first time on appeal that the money it spent in re-
 questing IPR was a property interest. Apple failed to raise
 these arguments below, and thus it has waived these argu-
 ments on appeal. See, e.g., Sage Prods., Inc. v. Devon In-
 dus., Inc., 

, 1426 (Fed. Cir. 1997) (declining
 to consider new arguments raised for the first time on ap-
 peal).
     We also recognize that the Board introduced Voip-Pal’s
 six ex parte letters into the record and gave Apple an op-
 portunity to respond to these letters during the panel re-
 hearing stage before a new panel. Apple chose, however,
 not to address the substance of Voip-Pal’s letters—the very
 same letters that Apple claims “tainted” its IPR proceed-
 ings. See Appellant’s Br. at 36. Thus, we fail to see how
 the Board’s sanctions orders deprived Apple of due process.
                       C. Non-Obviousness
     Apple also challenges the Board’s non-obviousness de-
 termination. Specifically, Apple argues that the Board le-
 gally and factually erred when it determined that Apple
 failed to establish a motivation to combine Chu ’684 with
 Chu ’366. We are not persuaded by Apple’s arguments.
   Apple’s underlying premise to combine the teachings of
 Chu ’684 with those of Chu ’336 was that a skilled artisan
 would have viewed Chu ’684’s interface as less “intuitive”
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 14                           APPLE INC.   v. VOIP-PAL.COM, INC.



 and less “user-friendly” than that of Chu ’366, and thus a
 skilled artisan would have a desire to improve Chu ’684’s
 system. In particular, Apple argued that Chu ’684’s system
 had a dialing deficiency that did not permit short-form
 phone number dialing but rather long-form, fully format-
 ted “E.164 numbers,” e.g., “+1-202-555-1234.” See Appel-
 lant’s Br. at 46. The Board rejected Apple’s argument,
 noting that Apple’s expert provided no “adequate support”
 and no “underlying evidentiary support” for the proposition
 that a skilled artisan would have regarded Chu ’684’s
 teachings as deficient.
      Apple argues on appeal that the Board legally erred in
 rejecting its motivation-to-combine argument by improp-
 erly applying the now-rejected teaching, suggestion, moti-
 vation test rather than the flexible obviousness analysis
 required under KSR International Co. v. Teleflex Inc., 

, 415 (2007). In particular, Apple faults the Board
 for rejecting its expert testimony that Chu ’684’s teachings
 were deficient for failure to provide “underlying eviden-
 tiary support for the proposition that [a POSITA] would
 have regarded Chu ’684’s teachings as deficient.” J.A. 19.
 We disagree with Apple.
      The Board did not fault Apple for not citing explicit
 “teachings, suggestions, or motivations to combine the
 prior art.” Appellant’s Br. at 50. Rather, the Board noted
 that Apple’s expert provided only “conclusory and insuffi-
 cient” reasons for combining Chu ’684 with Chu ’366 and
 failed to “articulate[] reasoning with some rational under-
 pinning.” J.A. 21. Thus, contrary to Apple’s position, the
 Board did not legally err but rather held Apple to the
 proper evidentiary standard. See In re Kahn, 

,
 988 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds
 cannot be sustained by mere conclusory statements; in-
 stead, there must be some articulated reasoning with some
 rational underpinning to support the legal conclusion of ob-
 viousness.”).
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 APPLE INC.   v. VOIP-PAL.COM, INC.                          15



      Apple also argues that the Board factually erred by
 failing to consider that Chu ’366 provides explicit evidence
 of motivation to combine, “explaining that there is a desire
 to enter abbreviated numbers for local and national tele-
 phone calls.” Appellant’s Br. at 50. However, the Board
 considered Chu ’366’s teachings and cited material parts
 but rejected the premise that Chu ’684’s interface was any
 less intuitive or user-friendly than Chu ’366’s. The Board
 credited the unrefuted testimony of Voip-Pal’s expert, Dr.
 Mangione-Smith, who explained that Chu ’684’s operation
 as a public branch exchange (“PBX”) system was not “inad-
 equate or unintuitive.” J.A. 968–71 (Ex. 2016 ¶¶ 65–67).
 In particular, Dr. Mangione-Smith explained, “PBX’s pro-
 vided all the features of ordinary phones connected to the
 [public switched telephone network], and in addition, sup-
 ported the dialing of private extension numbers. The use
 of a prefix digit such as ‘9’ was not a deficiency but rather
 a simple way of supporting both [public switched telephone
 network] dialing and extension dialing.” J.A. 969–70 (Ex.
 2016 ¶ 66) (emphasis in original). 5 We find no error in the
 Board’s decision to credit the opinion of Voip-Pal’s expert
 over Apple’s, and we do not reweigh evidence on appeal.
 Impax Labs. Inc. v. Lannett Holdings Inc., 

,
 1382 (Fed. Cir. 2018). Substantial evidence supports the
 Board’s finding that Chu ’684 did not disclose a dialing de-
 ficiency.
                           CONCLUSION
    We have considered the parties’ remaining arguments
 and find them unpersuasive. We vacate the Board’s deter-
 minations that claims 1, 7, 27, 28, 72, 73, 92, and 111 of the


     5   The Board alternatively determined that even if
 there was a motivation to combine, the combination of Chu
 ’684 and Chu ’366 still failed to render the challenged
 claims obvious. We do not address this alternative deter-
 mination.
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 16                            APPLE INC.   v. VOIP-PAL.COM, INC.



 ’815 patent and claims 49, 73, 74, 75, 77, 78, 83, 84, 94, 96,
 and 99 of the ’005 patent are not invalid as obvious and
 remand to the Board to dismiss these claims as moot. We
 affirm the Board’s non-obviousness determinations as to
 the remaining claims. We also affirm the Board’s sanctions
 orders.
  AFFIRMED IN PART, VACATED AND REMANDED
                  IN PART
                            COSTS
      No costs.