“Whether this Court has authority to review and reverse an agency’s determination on a factual ground, here, ‘teaching away,’ that was explicitly disclaimed by the party bearing the burden of proof, never ruled upon by the agency, and contradicted by record evidence.”
Whether “the panel decision conflicts with Supreme Court and this Court’s precedent on: (1) this Court’s limited review of factual issues in agency decisions, e.g., Securities and Exchange Commission v. Chenery Corporation, 318 U.S. 80 (1943), In re NuVasive, Inc., 842 F.3d 1376 (Fed. Cir. 2016), In re Gartside, 203 F.3d 1305 (Fed. Cir. 2000); (2) the strict standard for finding a teaching away from claim limitations, e.g., Meiresonne v. Google, Inc., 849 F.3d 1379 (Fed. Cir. 2017), Bayer Pharma AG v. Watson Laboratories, Inc., 874 F.3d 1316 (Fed. Cir. 2017), In re Mouttet, 686 F.3d 1322 (Fed. Cir. 2012); and (3) secondary considerations, e.g., Novartis AG v. Torrent Pharmaceuticals Limited, 853 F.3d 1316 (Fed. Cir. 2017), Ethicon Endo-Surgery, Inc. v. Covidien LP, 812 F.3d 1023 (Fed. Cir. 2016).”
