Federal Circuit grinds up blender patent

The US Court of Appeals for the Federal Circuit has crushed a patent covering a blender in a battle between two homeware appliance companies, in a decision on Friday, August 4.

Homeland Housewares had petitioned for inter partes review (IPR) of claims 1–16 of US patent number 7,581,688, which is assigned to rival homeware appliance company Whirlpool, in June 2014.

Patent ‘688 claims a “pre-programmed, automated blending cycle designed to blend items quickly and reliably”.

It does so 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,” according to the Federal Circuit.

Homeland sought a claim construction of “settling speed” and argued that the claims at issue were invalid due to anticipation by Wulf, US patent number 6,609,821.

The Patent Trial and Appeal Board (PTAB), in its final written decision, declined to provide a construction of “settling speed” and concluded that Homeland had not shown that any claims of the ‘688 patent were anticipated by Wulf.

Homeland appealed to the Federal Circuit.

In a precedential ruling, the Federal Circuit explained that the PTAB determined that Wulf didn’t anticipate the ‘688 patent because its disclosure didn’t meet the “setting speed” limitation, but the board didn’t “adopt any explicit construction of the term” for its decision, even though the parties disagreed over the claim construction.

“Just as district courts must, ‘when the parties raise an actual dispute regarding the proper scope of … claims, … resolve that dispute’ … the board also must resolve such disputes in the context of IPRs,” said Circuit Judge Timothy Dyk, on behalf of the court.

Under the broadest reasonable interpretation construction, a “predetermined settling speed” is one that’s slower than the operating speed and permits settling of the blender contents, said the Federal Circuit.

It added that this construction is consistent with the ordinary and customary meaning of the words of the claim.

Based on this construction, the court concluded that the PTAB had erred in finding that Wulf doesn’t anticipate the ‘688 patent.

The court concluded that all the claims of the ‘688 patent were invalid as anticipated by Wulf, and reversed the board’s decision.

Raymond Trojan, founder of Trojan Law Offices and representative of Homeland, said: “We are grateful to the Federal Circuit for clarifying the limitations on experts when the intrinsic evidence of invalidity in the prior art is clear.”

The PTAB had also found that Homeland “left the testimony of the patent owner’s witness, Faerber, unrebutted” and it was unwilling to discount Faerber’s testimony that Wulf doesn’t anticipate.

“However, we must disregard the testimony of an expert that is plainly inconsistent with the record,” said the Federal Circuit.

Trojan added that experts are not “free to simply declare that what is plainly stated in the prior art does not exist in the prior art”.

“What this means for patent law is that in cases in which the intrinsic evidence in the prior art invalidates the challenged claims, the patent owner cannot submit extrinsic evidence in the form of expert testimony to interpret the prior art in a contorted manner to avoid invalidation,” said Trojan.

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