IP Law Daily Claims for household blenders’ automated pulsing cycle were anticipated by prior art
Friday, August 4, 2017

Claims for household blenders’ automated pulsing cycle were anticipated by prior art

By Thomas Long, J.D.

The Patent Trial and Appeal Board erred in determining that the claims of a Whirlpool Corp. patent related to an automated pulsing cycle for household blenders were not invalid as anticipated by prior art, the U.S. Court of Appeals for the Federal Circuit has held in a split decision. The Board failed to adopt an explicit construction of the key claim term "settling speed," although the parties disagreed as to the meaning of the term. Without a claim construction, it was improper for the Board to conclude that prior art did not meet that limitation. Because the Board did not rely on extrinsic evidence as to claim construction, the court was able to determine the correct construction of "settling speed" and determined that the prior art did, in fact, meet that limitation and all other limitations of the challenged claims (Homeland Housewares, LLC v. Whirlpool Corp., August 4, 2017, Dyk, T.).

Homeland Housewares, LLC, petitioned the USPTO for an inter partes review (IPR) of Whirlpool’s U.S. Patent No. 7,581,688 ("the ’688 patent"), which claimed a preprogrammed, 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." Homeland asserted that claims 1–16 of the ’688 patent were anticipated by prior art reference U.S. Patent No. 6,609,821 ("Wulf"). The Board instituted review but concluded that the claims were not anticipated by Wulf. Homeland appealed to the Federal Circuit.

The court noted that the ’688 patent itself admitted that 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. In prior art, this blending routine was done manually. There also were blenders on the market that allowed users to preprogram "on-off" sequences to enable hands-free operation.

Independent claim 1 of the ’688 patent—which the court stated was representative of all of the claims at issue—provided for a blender operation cycle comprising "automatically controlling" the device’s speed to achieve (1) a constant speed phase, (2) a deceleration phase, and (3) an acceleration phase. The key claim limitation at issue was the deceleration phase, which provided that "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." In particular, the court focused on the term "settling speed."

Claim construction. In the IPR proceeding, Homeland requested a construction of "settling speed," but the Board did not declined to construe it. The Board concluded that Wulf did not meet the "settling speed" limitation. According to the court, it was error for the Board to reach this conclusion without adopting any explicit construction of the term.

Given that the Board did not rely on extrinsic evidence as to claim construction, the court was able to determine the correct construction of "settling speed" and then decide whether the Board correctly held that Wulf did not meet the limitations of claim 1. According to Whirlpool, empirical testing was needed to determine the settling speed for each individual blender and its content load. The court disagreed. The undisputed plain meaning of "predetermined" was "to determine beforehand"; in the court’s view, this definition did not require that a predetermined speed be empirically determined for each use, depending on the particular blender or the individual contents of the blender. Although the specification referred to an embodiment of the invention in which "a predetermined settling speed" was empirically determined and varied depending on blender use, the process for empirically determining the settling speed was not taught in the specification and was not a part of the claims. The suggestion regarding empirical determination in the specification could not define the scope of the claim, the court said, because it provided no meaningful definition of an empirically determined settling speed, except for a single example relating to crushed ice. Moreover, particular embodiments in the written description did not serve to limit claim language that had broader effect.

The court also rejected Homeland’s proposed definition of "settling speed" as any comparative low speed less than the operating speed. Not every speed that was lower than the operating speed would be sufficient to allow the contents of the blender to settle. Therefore, the court adopted its own definition.

The broadest reasonable construction of "a predetermined settling speed" was a speed that was slower than the operating speed and permitted settling of the blender contents, the court said. This definition was consistent with the ordinary and customary meaning of the claim’s words. According to the court, the construction was not new, but simply represented a midpoint between the two opposing constructions proposed by the parties. The court also noted that the construction was "practically identical" to the construction used by the Board in its institution decision.

Anticipation. Based on this construction of "settling speed," the court concluded that the Board erred in finding that Wulf did not anticipate the ’688 patent. A figure in Wulf disclosed an automated blender routine for "powdered drinks," calling for pulses between "high speed" and "low speed" for varying periods of time. Wulf’s specification taught 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." In the court’s view, the figure disclosed a settling speed limitation consistent with its claim construction, as well as the other elements of the pulsing cycle in claim 1 of the ’688 patent.

Accordingly, all claims of the ’688 patent were invalid as anticipated by Wulf, and the decision of the Board was reversed.

Dissenting opinion. Circuit Judge Pauline Newman dissented. In Judge Newman’s view, the majority "rewrote" the claims of the ’688 patent and adopted a claim construction that stated the invention more broadly than the patentee. According to Judge Newman, the ’688 patent provided an improvement over the prior art, and the majority erroneously overturned the finding of the Board, based on an incorrect understanding of the claims and an unwarranted enlarging of the references.

The case is No. 2016-1511.

Attorneys: Raymond Joseph Trojan (Trojan Law Offices) for Homeland Housewares, LLC. Richard Hung (Morrison & Foerster LLP) for Whirlpool Corp.

Companies: Homeland Housewares, LLC; Whirlpool Corp.

MainStory: TopStory Patent FedCirNews

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