Opinions — Wednesday, August 26, 2026

The Federal Circuit vacated-in-part and affirmed-in-part a PTAB final written decision holding claims 1, 2, 6–8, and 12–14 of Zilkr Cloud Technologies' U.S. Patent No. 9,210,254 unpatentable as obvious over prior art. The patent relates to a unified communications platform using a telephone number as a common subscriber identifier. Zilkr challenged the Board's claim construction of "request to provision" and "activate," argued that substantial evidence did not support the Board's findings regarding limitation [1.3], and contended the decision violated the APA.

The court vacated the Board's construction of "request to provision" and "activate," holding that the intrinsic evidence—particularly the specification's uniform treatment of "activating" services solely in the context of adding new services and its distinction between "activating" and "managing" or "accessing" existing services—limited these terms to adding new services rather than managing existing ones. The court affirmed the Board's finding that the prior art satisfied the "utilized by" limitation in [1.3], applying substantial evidence review and deferring to the Board's construction of "utilize" as "use" without requiring knowing and intentional use. The court also rejected Zilkr's APA challenge, finding the Board adequately explained its evidentiary basis and the rational connection between its factual findings and conclusions regarding motivation to combine and reasonable expectation of success.

In Ascend Elements, Inc. v. Duesenfeld GmbH, the Federal Circuit granted the parties' joint stipulation to voluntarily dismiss Appeal No. 2026-1357 under Federal Rule of Appellate Procedure 42(b), with each side to bear its own costs. The court deconsolidated the appeals and revised the official captions, leaving Appeal No. 2026-1390 pending with a reminder to comply with the court's prior June 24, 2026 order.