By Dennis Crouch
Nestle USA v. Steuben Foods (Fed. Cir. 2017) (nonprecedential)
In its final written decision, the PTAB sided with the patentee – holding that IPR-challenged claims were not obvious. U.S. Patent No. 6,945,013 claims 18-20 (aseptic bottling at > 100 bottles per minute). On appeal, Nestle has successfully argued that Board incorrectly construed the claim term “aseptic.”
In Cuozzo, the Supreme Court gave deference to and agreed with the USPTO’s approach of giving claims their “broadest reasonable interpretation” (BRI) during inter partes review (IPR) proceedings. In most areas of law “reasonableness” is seen as a factual finding that is then reviewed with deference on appeal. Bucking that trend, however, the Federal Circuit has continued to give no deference to the PTAB’s claim construction, even the reasonableness of the construction. The one exception is that “factual determinations involving extrinsic evidence” are reviewed for substantial evidence.
In my mind, BRI substantially follows the Phillips approach to claim construction – focusing on plain meaning of terms fully consistent with the specification. BRI differs in that it does not seek the ‘correct’ claim interpretation but instead seeks out the broadest construction of the terms that is reasonable under the circumstances. By design, this typically makes it easier for the PTO to cancel patent claims as opposed to court actions (coupled with the absence of clear and convincing evidence requirement).
Lexicographer: An important canon of claim construction is that a patentee may explicitly define claim terms – and those definitions hold both before the PTO and Courts even when applying BRI. Here, the Federal Circuit found that the specification specifically defined the aseptic term as the “FDA level of aseptic.” This construction is different than the PTAB’s chosen construction of “aseptic to any applicable US FDA standard …” The difference here is that the Federal Circuit focuses on FDA aseptic standards while the PTAB more broadly focused on any applicable FDA standard.
Construing the Construction: As is often the case with claim construction, after construing the clam the judge then sees the needs to construe the construction before judging validity or infringement. Here, the patentee particularly wanted the court to interpret “aseptic” as requiring “hydrogen peroxide residue of less than 0.5 ppm.” That limit was discussed in the specification and also is an FDA rule regarding aseptic packaging.
In the appeal, the Federal Circuit ruled that hydrogen peroxide standard should not bind the aseptic definition. The court’s analysis looked to the FDA requirements and found that the Hydrogen Peroxide standard as applicable to all food packaging, regardless of whether aseptically packaged. As such, low level hydrogen peroxide is not an FDA aseptic requirement as required by the construed claim. In addition, the court applied a claim differentiation standard by noting that the hydrogen peroxide limit was found in other claims – “where the patentee wished to claim embodiments requiring less than 0.5 ppm of hydrogen peroxide residue, it did so using express language.”
Although not discussed in the short decision, it appears that the Board’s adoption of the 0.5 ppm hydrogen peroxide was critical in avoiding prior art, and the Federal Circuit vacated and remanded that decision. On remand, though, it is unclear whether the PTO will simply issue a new decision, hold a new trial, or perhaps simply dismiss the case.
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 Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131 (2016).
 See Teva; Microsoft Corp. v. Proxyonn, Inc. 789 F.3d 1292 (Fed. Cir. 2015).