We review for abuse of discretion the Board's decision to disregard a reply argument as exceeding the proper scope. Axonics, Inc. v. Medtronic, Inc., 75 F.4th 1374, 1380 (Fed. Cir. 2023).
"An abuse of discretion is found if the decision: (1) is clearly unreasonable, arbitrary, or fanciful; (2) is based on an erroneous conclusion of law; (3) rests on clearly erroneous fact finding; or (4) involves a record that contains no evidence on which the Board could rationally base its decision." Axonics, Inc. v. Medtronic, Inc., 75 F.4th 1374, 1380 (Fed. Cir. 2023) (quoting Ericsson Inc. v. Intell. Ventures I LLC, 901 F.3d 1374, 1379 (Fed. Cir. 2018)).
Moreover, we review the Board's determination whether, under the Board's own regulations, a party exceeded the scope of a proper reply for abuse of discretion. Axonics, Inc. v. Medtronic, Inc., 75 F.4th 1374, 1380 (Fed. Cir. 2023).
Regarding the "boundary" limitation, Centripetal argues that the Board prejudicially changed the claim construction-departing from the "well-understood plain and ordinary meaning," Centripetal Opening Br. at 39; id. at 40-41, in such a way as to deny it fair notice and an opportunity to address how the adopted construction read on the prior art at issue, in violation of recognized procedural rights. See Axonics, Inc. v. Medtronic, Inc., 75 F.4th 1374, 1383 (Fed. Cir. 2023); M &K Holdings, Inc. v. Samsung Electronics Co., 985 F.3d 1376, 1385-86 (Fed. Cir. 2021). We disagree.
First, ZyXEL never made any request to the Board to waive its rules and permit it to file an expert declaration. Oral Arg. 12:46-13:20; see, e.g., Axonics, Inc. v. Medtronic, Inc., 75 F.4th 1374, 1384 (Fed. Cir. 2023) (noting that the Board may allow new evidence and expert declarations to be submitted with sur-replies if requested by the parties to avoid prejudice); Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064, 1081 (Fed. Cir. 2015) ("Thus, if the petitioner submits a new expert declaration with its Reply, the patent owner can respond in multiple ways. . . . [I]t can request the Board waive or suspend a regulation that the patent owner believes impairs its opportunity to respond to the declaration."); Parkervision, Inc. v. Vidal, 88 F.4th 969, 981 (Fed. Cir. 2023) (concluding that because patent owner "failed to partake in available procedural mechanisms" such as "request[ing] that its [s]ur-reply be permitted to include arguments and evidence that would otherwise be impermissible in a sur-reply," it could not "fault the Board" for excluding new arguments in the sur-reply).