Guangdong Alison Hi-Tech Co. v. Int. Trade Comm. (ITC), Aspen Aerogels, Inc.
Docket No. 2018-2042
DYK, CHEN, STOLL
August 27, 2019
Brief Summary: ITC finding of no indefiniteness or invalidity for anticipation or obviousness affirmed.
Summary: Guangdong Alison Hi-Tech Co. (“Alison”; a foreign manufacturer) appealed ITC final determination that certain claims of Aerogel’s (a domestic company) US 7,078,359 directed to improved aerogel composition products are not indefinite regarding the term “lofty…batting”, or invalid for anticipation or obviousness. Alison manufactures aerogel insulation products and is currently subject to an ITC limited exclusion order following an unfair competition investigation, the order being based in part on the ITC’s finding that Alison infringes claims 1, 7, and 9 of the ‘359 patent. The FC panel reviewed the ITC’s decision for substantial evidence (“as a reasonable mind might accept…as ‘adequate to support a conclusion’” (Dickinson, US 1999; Jacobs, FC 1994 (“Substantial evidence must also ‘take into account whatever in the record fairly detracts from its weight.’”), and noted that “a challenger at the ITC must prove invalidity by clear and convincing evidence” (section 282; One-E-Way, FC 2017; Checkpoint, FC 1995).
Claim 1 of the ‘359 patent claims “[a] composite article…comprising a lofty fibrous batting sheet” which Alison argued was indefinite. The Administrative Law Judge (“ALJ”) rejected Alison’s argument “and adopted the ‘359 patent’s express definition” of the term, and “emphasized that the ‘bulk’ and ‘resilience’ components…are further explained in the specification”, and the ITC incorporated the ALJ’s conclusions into its final determination “without modification or further comment.” The FC panel reviewed the ITC’s determination de novo under the “reasonable certainty” Nautilus standard, which it explains “mandates clarity, while recognizing that absolute precision is unattainable” (Nautilus, US 2014; Sonix, FC 2017 (“a patentee need not define his invention with mathematical precision”); Biosig, FC 2015 (“[t]he degree of precision necessary…is a function of the nature of the subject matter”); Braintree, FC 2014 (“descriptive words like ‘copius’ are commonly used…to ‘avoid a strict numerical boundary”)). The required “objective boundaries” can be found in the intrinsic evidence (“claims, figures, written description, or prosecution history” (Sonix; One-E-Way, FC 2017; Enzo, FC 2010), and “[e]xtrinsic evidence can also help” (BASF, FC 2017). The FC panel agreed with the ITC that the term was not indefinite since, e.g., the specification includes “express definitions” and “details the functional characteristics” and “extrinsic evidence provides further support for the objective boundaries” (e.g., a technical dictionary, expert testimony) (“Alison seeks a level of numerical precision beyond that required when using a term of degree” and “has not provided any evidence…that the different methods of measurement…lead to different results.”)
The ALJ also found no anticipation or obviousness since the ‘359 specification “expressly distinguishes” the prior art (Ramamurthi) and expert testimony, which the ITC affirmed “with only slight modifications not at issue here.” Alison relied “on the doctrine of inherent disclosure to establish” in both arguments, but the ITC and the FC panel disagreed based in part on expert testimony but also because “[t]he ‘359 patent itself expressly discusses and distinguishes Ramamurthi, which was also considered by the patent examiner during prosecution” (Sciele, FC 2012 (“Arguments and references already considered by the Patent Office may carry less weight with the fact finder.”))