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Homeland Housewares, LLC v. Whirlpool Corp.

United States Court of Appeals, Federal Circuit

August 4, 2017


         Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. IPR2014-00877.

          Raymond Joseph Trojan, Trojan Law Offices, Beverly Hills, CA, argued for appellant. Also represented by Dylan C. Dang, Fredrick S. Tsang.

          Richard Hung, Morrison & Foerster LLP, San Francisco, CA, argued for appellee. Also represented by Esther Kim Chang, Peter J. Yim; Brian Robert Matsui, Washington, DC.

          Before Prost, Chief Judge, Newman, and Dyk, Circuit Judges.


          DYK, Circuit Judge.

         Homeland Housewares, LLC ("Homeland") petitioned the United States Patent and Trademark Office Patent Trial and Appeal Board ("Board") for an inter partes review of claims 1-16 of U.S. Patent No. 7, 581, 688 ("'688 patent"), which is assigned to Whirlpool Corporation ("Whirlpool"). The Board did not construe the key term "settling speed" found in the claims and determined that the claims were not invalid as anticipated by prior art reference U.S. Patent No. 6, 609, 821 ("Wulf"). Homeland appeals. We reverse.


         The '688 patent relates to household blenders. The invention claimed in the '688 patent is a pre-programmed, automated blending cycle designed to blend items "quickly and reliably-by repeatedly dropping to a speed slow enough to allow the blender contents to settle around the cutter assembly, and then returning to a [higher] speed suitable for processing the contents." Appellee Br. 4.

         As admitted in the '688 patent itself, it was well-known that a user could manually pulse between a high speed and a low speed to "achieve[] . . . a pattern of movement that introduces the entire contents of the reservoir into contact with the rotating blades" for efficient mixing. '688 patent, col. 1 ll. 20-23; see also id. at col. 6 ll. 46-50. Thus, the claimed automatic blending routine 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." Id. at col. 1 ll. 38-39.

         An independent claim at issue, claim 1, provides:

A cycle of operation for a blender comprising a motor, a container for holding items for processing, and a cutter assembly located within the container and operably coupled to the motor whereby the motor effects the rotation of the cutter assembly, the cycle comprising: automatically controlling a rotational speed of the cutter assembly to effect a pulsing of the speed of the cutter assembly wherein each pulse comprises:
(A) a constant speed phase, where the operating speed of the cutter assembly is maintained at a predetermined operating speed,
(B) a deceleration phase, where the speed of the cutter assembly is reduced from the operating speed to a predetermined settling speed indicative of the items in the container having settled around the cutter assembly, which is less than the operating speed and greater than zero, and
(C) an acceleration phase, where the speed of the cutter assembly is increased from the settling speed to the operating speed.

Id. at col. 7 ll. 4-23 (emphases added). Claim 1 is representative and there are no patentability distinctions offered here with respect to the other claims of the '688 patent.[1]

         On June 2, 2014, Homeland petitioned the Board for an inter partes review of claims 1-16 of the '688 patent, seeking a construction of "settling speed, " and arguing, inter alia, that the claims at issue are invalid due to anticipation by Wulf. Like the '688 patent, Wulf noted that it was well-known that manually "[p]ulsing the motor . . . at high and then low speeds permits the material being blended to fall back to the region of the cutting knives[, ] thereby improving the blending or mixing of the material." Wulf, col. 1 ll. 36-39. Wulf notes that this manual "process can be very frustrating, " id. at col. 2 l. 20, and thus teaches "a blender . . . that is programmed to [automatically] accomplish predetermined [blending] functions and routines, " id. at col. 2 ll. 25-27.

         In its Final Written Decision, the Board declined to provide a construction of "settling speed" and concluded that Homeland had "not shown, by a preponderance of the evidence, that any claim of the '688 patent is anticipated by Wulf." J.A. 7, 14.

         Homeland appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(4).

         In appeals from inter partes reviews, we review the Board's conclusions of law de novo and the Board's findings of fact for substantial evidence. Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1297 (Fed. Cir. 2015). Claim construction is an issue of law that we review de novo where, as here, there is no relevant extrinsic evidence. Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831, 841 (2015).



         Anticipation is a two-step analysis. The first step is properly interpreting the claims. Beachcombers v. Wil-deWood Creative Prods., Inc., 31 F.3d 1154, 1160 (Fed. Cir. 1994). The second step is determining whether the limitations of the claims, as properly interpreted, are met by the prior art. Id. The Board determined that Wulf did not anticipate the '688 patent because its disclosures did not meet the "settling speed" limitation. J.A. 14. However, the Board did "not adopt any explicit construction of the term for [its] Final Written Decision, " J.A. 7, even though the parties disagreed as to claim construction.[2]Just as district courts must, "[w]hen the parties raise an actual dispute regarding the proper scope of . . . claims, . . . resolve that dispute, " O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1360 (Fed. Cir. 2008), the Board also must resolve such disputes in the context of IPRs. See CSR, PLC v. Skullcandy, Inc., 594 F.App'x 672, 678 (Fed. Cir. 2014) (holding that "[t]he Board erred by failing to construe 'threshold value' as it is used in claims 1-6 before finding that [prior art reference] Smith failed to disclose a 'threshold value'" in anticipation). Given that the Board did not rely on extrinsic evidence here as to claim construction, we can determine the correct construction of "settling speed" and then determine whether the Board correctly held that Wulf does not meet the limitations of claim 1. Teva, 135 S.Ct. at 841.

         "[T]he claim construction inquiry . . . begins and ends in all cases with the actual words of the claim." Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1248 (Fed. Cir. 1998) (citations omitted). Here, the relevant language of claim 1 provides that during pulsing, "the speed of the cutter assembly is reduced from the operating speed to a predetermined settling speed." '688 patent, col. 7 ll. 15-17 (emphasis added).

         Whirlpool proposes that "a predetermined settling speed" means "a speed, greater than zero, that indicates that items have settled around the cutter assembly." Appellee's Br. 43. At times on appeal, Whirlpool argues that empirical testing is required to establish a settling speed. Whirlpool recognizes that empirical testing would require determining the settling speed for each individual blender and its content load, "[b]ecause so many factors affect the settling speed." Appellee's Br. 9; see also id. at 45; Oral Arg. 18:16-25 (skilled artisans looking at the '688 patent would "perform tests to determine . . . at what point in time [the blender ingredients] settles to arrive at the predetermined settling speed").[3] We conclude that a construction that would require empirical testing is incorrect. Indeed, the dissent also does not endorse a claim construction that requires empirical testing.

         The words of a claim are generally given their ordinary and customary meaning. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005). In some cases, the ordinary meaning of claim language may be readily apparent and claim construction will involve little more than the ...

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