• Fred Hadidi

The Federal Circuit crushes PTAB decision in dispute over blender settings.

Homeland Housewares, LLC v. Whirlpool Corporation


Decided: August 4, 2017

Case Summary

In its Institution Decision in an Inter Partes Review, the Patent Trial and Appeal Board construed a disputed claim term; but in its Final Written Decision holding the challenged claim to be not invalid, the Board “did not adopt any explicit definition” of that term—even though the parties disagreed about its meaning. Was this failure to construe a disputed term in

the Final Written Decision reversible error? Over a strong dissent by Judge Newman, the United States Court of Appeals for the Federal Circuit (Federal Circuit) said yes.

Whirlpool Corporation owns US Patent No. 7,581,688, which relates to household blenders. As described by the Federal Circuit, the invention claimed in that 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.”

The claim at issue here recites a cycle of operation for a blender that has three phases: (a) a “constant speed phase” in which the blender’s blades operate at a predetermined operating speed; (b) a “deceleration phase” where the operating speed is reduced to a “predetermined settling speed” so the blender’s contents will settle around the blades; and (c) an “acceleration

phase” where the speed returns to the operating speed in phase (a).

The claim construction dispute concerned the term “predetermined settling speed,” which (in its Institution Decision) the Board construed as “a speed at which the cutter assembly has slowed enough to allow the blender contents to be processed again.”

During the IPR, Homeland Housewares argued this claim to be anticipated by an early-1970s prior art reference to Wulf, which discloses an automated blender routine that alternates between several seconds at relatively higher speeds and several seconds at relatively lower speeds. In Wulf, the term “low speeds” appears only once in the specification, where the background teaches that “[p]ulsing the motor on/off or 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.”

The Board found that the challenged ‘688 patent teaches deceleration to the settled condition via the settling speed; by contrast, Wulf teaches deceleration and operation at the settled condition for a significant period of time via the settling speed. In finding that Wulf did not anticipate the challenged claim, the Board agreed with the patent owner’s expert, who

explained that “[i]t would not be useful to maintain the settling speed for any significant length of time,” since “speeds typical of settling speeds do not efficiently [pulverize] the blender contents,” and where a (lower) speed is maintained in accordance with Wulf, it is “likely too high to be considered a settling speed.”

The Federal Circuit reversed. Its opinion first faulted the Board for not explicitly construing the phrase “a predetermined settling speed,” and then construed it to mean “a speed that is slower than the operating speed and permits settling of the blender contents.” Finally, the panel disregarded the testimony of the patent owner’s expert, calling it “plainly inconsistent with

the record” and “based on an incorrect understanding of the claims,” and held the claim to be anticipated by Wulf.

In her dissent, Judge Newman argued that the Board’s decision was supported by substantial evidence: the challenged claim requires each pulse of the blender to include a predetermined operating speed, a deceleration phase to the settling speed, and an acceleration from the settling speed to the predetermined operating speed. The patent owner’s expert testified that the Wulf reference did not teach these limitations, and this testimony—which was not rebutted—was the basis for the Board’s finding. In reversing the Board without explaining where these portions of the claimed process are disclosed in Wulf, Judge Newman says the panel majority does not discuss the substantial evidence on which the Board’s decision was based, ignores

the unrebutted expert evidence, and in general oversteps the appellate role by not giving the fact finder appropriate deference.

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