Docket No. 2016-1511 (IPR2014-00877)
PROST, NEWMAN, DYK
August 4, 2017
Brief summary: Board decision of no anticipation of Whirlpool’s patent related to blenders reversed based on analysis after claim construction.
Summary: Homeland appealed Board IPR decision that Whirlpool’s US 7,581,688 relating to household blenders was not invalid for anticipation. The FC panel opinion explains that the ‘688 patent relates to a pre-programmed, automated blending cycle that “repeatedly drop[s] to a speed slow enough to allow the blender contents to settle around the cutter assembly, and then return[s] to a [higher] speed suitable for processing the contents”, a “routine [that] was, in the prior art, done manually” (“There were also blenders on the market which allowed ‘preprogram[ing] ‘on-off’ sequence[s] [to] enable[] hands-free operation of the blender.”) Homeland argued to the Board that the ‘688 claims were anticipated by “Wulf” which was alleged to teach “a blender…that is programmed to [automatically] accomplish predetermined [blending] functions and routines.” “[T]he Board declined to provide a construction of settling speed’” and determined Homeland had not shown anticipation by a preponderance of the evidence. The FC panel explained it reviewed the Board’s conclusions of law de novo and its findings of fact for substantial evidence (Microsoft, FC 2015). The Board’s claim construction conclusions of law were reviewed de novo as “there is no relevant extrinsic evidence” (Teva, US 2015). And anticipation requires a two-step analysis: interpreting the claims and then “determining whether the limitations of the claims, as properly interpreted, are met by the prior art” (Beachcombers, FC 1994). The FC panel explained that the Board did not settle the parties’ dispute regarding the “settling speed” limitation as required (O2 Micro, FC 2008; CSR, FC 2014). The FC panel therefore construed the limitation as step one in its anticipation analysis (“[T]he claim construction inquiry…begins and ends in all cases with the actual words of the claim.” Renishaw, FC 1998; “The words of a claim are generally given their ordinary and customary meaning” and “must also be read in view of the specification, of which they are part.” Phillips, FC 2005; “[P]articular embodiments appearing in the written description will not be used to limit claim language that has broader effect.” Innova/Pure Water, FC 2004). Whirlpool argued “that empirical testing is required to establish a settling speed…[b]ecause so many factors affect” it but the FC panel “conclude[d] that a construction that would require empirical testing is incorrect.” The FC panel found that “the process for empirically determining a settling speed is neither taught in the specification nor a part of the claims”. While the specification explains “these speeds and time periods will vary for different blenders, and must be determined empirically for a particular blender”, “it provides no meaningful definition of an empirically determined settling speed other than with respect to a single example (relating to crushed ice).” Under the broadest reasonable construction (BRC), the FC panel found the term refers to “a speed that is slower than the operating speed and permits settling of the blender contents” (Philips; In re NTP, FC 2000). And “[b]ased on this construction,” the FC panel concluded the Board erred in not finding anticipation by Wulf. The FC panel also reviewed the Board’s finding that it would not discount Whirlpool’s witness testimony since Homeland did not rebut it, but the panel concluded it could be disregarded as “plainly inconsistent with the record” (NantKWest, FC 2017; Cordis, FC 2011 (“based on an incorrect understanding of the claim[s])). The Board decision was reversed.
Federal Circuit summaries 