Weber, Inc. v. Provisur Technologies, Inc.

92 F.4th 1059

• Court: Court of Appeals for the Federal Circuit
• Decided: February 8, 2024
• Docket: 22-1751
• Status: Published

Opinion

Case: 22-1751 Document: 95 Page: 1 Filed: 02/08/2024

United States Court of Appeals for the Federal Circuit ______________________

WEBER, INC., Appellant

v.

PROVISUR TECHNOLOGIES, INC., Appellee ______________________

2022-1751, 2022-1813 ______________________

Appeals from the United States Patent and Trademark Office, Patent Trial and Appeal Board in Nos. IPR2020- 01556, IPR2020-01557. ______________________

Decided: February 8, 2024 ______________________

RICHARD CRUDO, Sterne Kessler Goldstein & Fox PLLC, Washington, DC, argued for appellant. Also repre- sented by TREVOR O'NEILL, RALPH WILSON POWERS, III.

MICHAEL BABBITT, Willkie Farr & Gallagher LLP, Chi- cago, IL, argued for appellee. Also represented by CRAIG C. MARTIN, REN-HOW HARN, SARA TONNIES HORTON. ______________________

Before REYNA, HUGHES, and STARK, Circuit Judges. REYNA, Circuit Judge. Case: 22-1751 Document: 95 Page: 2 Filed: 02/08/2024

Weber appeals two final written decisions from the Pa- tent Trial and Appeal Board. The Board determined that Weber failed to establish the unpatentability of the claims of Provisur’s patents. The Board first found that Weber’s operating manuals were not prior art printed publications. The Board also determined that the prior art did not dis- close two challenged claim terms, one of which was in- cluded in the Board’s claim construction of the challenged claims. We reverse the Board’s printed publication deter- minations, vacate the Board’s conclusions regarding We- ber’s failure to establish unpatentability of the challenged claims, and remand for further proceedings. BACKGROUND A. U.S. Patent Nos. 10,639,812 and 10,625,436 Provisur is the owner of U.S. Patent Nos. 10,639,812 (“’812 patent”) and 10,625,436 (“’436 patent”). The ’812 and ’436 patents relate to high-speed mechanical slicers used in food-processing plants to slice and package food articles, such as meats and cheeses. ’812 patent at Abstract. 1 Alt- hough the slicers have numerous components, three claimed components are relevant here: (1) the “food article loading apparatus”; (2) the “food article feed apparatus”; and (3) the “food article stop gate.” Id. at 11:16–38. 2

1 We primarily cite to the ’812 patent, which shares a common specification with the ’436 patent. The parties agree that claim 1 of the ’812 patent is representative of the challenged claims in this appeal. Appellant Br. 12; Ap- pellee Br. 2. 2 We will subsequently refer to the “food article load- ing apparatus” as the “loading apparatus,” the “food article feed apparatus” as the “feed apparatus,” and the “food ar- ticle stop gate” as the “stop gate.” Case: 22-1751 Document: 95 Page: 3 Filed: 02/08/2024

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Figures 1B and 1 below 3 display the loading apparatus (108, labeled in Figure 1) (colored in blue) and the feed ap- paratus (120, labeled in Figure 1) (colored in orange). The loading apparatus (108) includes a lift tray (220) on which food articles are loaded while the lift tray is in a horizontal staging position. Id. at 2:52–54; 9:28–34. When the food is ready to be sliced, the lift tray pivots to an elevated posi- tion, as shown in Figure 1. From that position, the food articles enter the slicer’s overhead feed apparatus (120). Id. at 4:33–43; 9:60–10:4.

Id. at Fig. 1B; Appellant Br. 8.

3 All figure and image annotations have been pro- vided by the parties unless otherwise noted. Case: 22-1751 Document: 95 Page: 4 Filed: 02/08/2024

Id. at Fig. 1; Appellant Br. 8. As shown in Figures 1 and 1B above, and Figure 2 be- low, the feed apparatus (120) contains “grippers” (894, la- beled in the patent) (colored in green). The grippers grasp the food articles from behind while they are still supported by the lift tray and drive them downward along the feed path (shown in red dashed arrow) until they reach the slic- ing station (124) (shown in yellow in Figure 1). ’812 patent at 2:55–60; 9:13–24. There, the food articles are sliced by the slicing blade (125) (shown in yellow in Figure 1B). Id. at 4:43–46. Figure 2 shows a top-down view of the slicer where each gripper is independently driven by a conveyor belt Case: 22-1751 Document: 95 Page: 5 Filed: 02/08/2024

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(802, 804, 806) coupled to its own servomotors (850). Id. at 9:15–24; 10:44–46.

Id. at Fig. 2; Appellant Br. 10. Figure 2 shows that the feed apparatus (colored in orange) is positioned above the load- ing apparatus’s lift tray (shown in blue dashed lines), such that the grippers (colored in green), feed path (red dashed arrow), and lift tray are generally aligned when viewed from a top-down position. In addition to the loading apparatus and feed appa- ratus components, the stop gate, the third claimed compo- nent relevant on appeal, serves several purposes. ’812 patent at 3:7–8. As shown below in Figure 13A, when a food article is loaded, it travels along the path of the red dashed arrow toward the slicing blade (125) until it reaches the stop gate (2020). The stop gate (shown in light blue) can, in this elevated position, act as a gate to temporarily block a loaded food article from prematurely sliding into the slicing station. Id. at 10:8–13. When the stop gate is lowered, as shown in Figure 13B, the stop gate acts as a floor to support the loaded food article as it slides toward the slicing blade (125). Id. Case: 22-1751 Document: 95 Page: 6 Filed: 02/08/2024

Figs. 13A & 13B; Appellant Br. 11–12. Representative claim 1 of the ’812 patent recites a food slicer containing two limitations at issue here: (1) the “dis- posed over” limitation and the (2) “stop gate” limitation. The “disposed over” limitation requires “a food article feed apparatus disposed over [the] food article loading appa- ratus.” ’812 patent at 11:17–18. The “stop gate” limitation requires that the stop gate support food articles “when the lift tray assembly is moved from its elevated position” to load new food articles. Id. at 11:33–36. B. The Prior Art Weber asserted prior art references in both inter partes review (“IPR”) proceedings that generally relate to food slicers. Weber presented its obviousness theories based on its commercial food slicer operating manuals in combina- tion with U.S. Patent No. 5,628,237 (“Lindee”) and U.S. Pa- tent Publication No. 2009/0145272 (“Sandberg”). J.A. 8; J.A. 84–85. Weber’s operating manuals were created and disseminated to accompany and explain how to use Weber’s commercial food slicer products. J.A. 1311–481; J.A. 1698– Case: 22-1751 Document: 95 Page: 7 Filed: 02/08/2024

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99. 4 The operating manuals disclose that Weber’s food slicer contains a “product conveyer” that is first in a hori- zontal position to receive food articles. J.A. 1325. After receiving food articles, the product conveyer is then ele- vated to a position where the food articles will be driven along a feed path toward a slicing blade. J.A. 1350. The operating manuals also disclose that a “product bed con- veyor supports the transport of the product” and “prevents the products from sliding into the outlet in an uncontrolled manner.” J.A. 1331. C. Procedural History Provisur sued Weber in federal court alleging infringe- ment of the ’812 and ’436 patent claims. Weber then filed two IPR petitions alleging the unpatentability of claims 1– 11 of the ’812 patent and claims 1–16 of the ’436 patent. J.A. 277–345. The Board instituted the IPRs based on ob- viousness theories involving Weber’s operating manuals in combination with the Lindee and Sandberg references. J.A. 419–43. Relying on In re Enhanced Security Research, LLC, 739 F.3d 1347 (Fed. Cir. 2014), the Board initially found in its institution decisions that Weber provided evi- dence to “support the public availability” of the operating manuals. J.A. 434–42. In its final written decisions, the Board changed course. The Board concluded that the oper- ating manuals do not qualify as printed publications. The Board first found that the operating manuals were distrib- uted to just “ten unique customers.” J.A. 29; J.A. 106. The Board further found that the operating manuals were sub- ject to confidentiality restrictions based on the Board’s in- terpretation of the operating manuals’ copyright notice and the intellectual property rights clause in Weber’s terms

4 Since the operating manuals are substantively identical in relevant portions, even though they are dated years apart, we cite to the 2006 operating manual as rep- resentative. Appellant Br. 14. Case: 22-1751 Document: 95 Page: 8 Filed: 02/08/2024

and conditions underlying the sales of each slicer product. J.A. 28–31; J.A. 105–08. On the merits, the Board determined that, even if We- ber’s manuals qualify as printed publications, Weber’s as- serted prior art combinations do not disclose the “disposed over” and “stop gate” limitations from claim 1 in each chal- lenged patent. J.A. 70; J.A. 139. For the “disposed over” limitation, the Board’s conclusion rested on its claim con- struction of the term “disposed over” to require that the “feed apparatus and its conveyor belts and grippers are ‘po- sitioned above and in vertical and lateral alignment with’ the food article loading apparatus and its lift tray assem- bly.” J.A. 18; J.A. 95. The Board explained that vertical alignment means that the feed apparatus is “directly above the loading apparatus.” J.A. 13; J.A. 90. And in the Board’s view, laterally aligned means that “there is no off- set between the sides of feed apparatus and the loading ap- paratus” when viewed from above. J.A. 13; J.A. 90. For the “stop gate” limitation, the Board rejected We- ber’s expert’s reliance on Figures 10 and 227 of the operat- ing manuals. The Board faulted these figures for not physically depicting a food article in the slicer or the food lift tray and criticized this as insufficient to show that the product bed conveyor of the operating manuals supported the food article when the product conveyor moves from its elevated position. J.A. 68–69; J.A. 142. Thus, the Board determined that Weber’s asserted prior art failed to disclose the “disposed over” and “stop gate” limitations from claim 1 in each challenged patent. As a result, the Board concluded that Weber failed to carry its burden of proving unpatentability for the dependent claims. J.A. 73–74; J.A. 146–47. Weber appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A). Case: 22-1751 Document: 95 Page: 9 Filed: 02/08/2024

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STANDARD OF REVIEW We review de novo the Board’s legal conclusion on whether a reference is a printed publication under 35 U.S.C. § 102(b) and its underlying factual findings for sub- stantial evidence. Valve Corp. v. Ironburg Inventions Ltd., 8 F.4th 1364, 1372–73 (Fed. Cir. 2021). Claim construction is a question of law with underlying questions of fact. Wasica Fin. GmbH v. Cont’l Auto. Sys., Inc., 853 F.3d 1272, 1278 (Fed. Cir. 2017). We review de novo the Board’s ultimate claim construction and its sup- porting determinations that are based on intrinsic evi- dence. Personalized Media Commc’ns, LLC v. Apple Inc., 952 F.3d 1336, 1339 (Fed. Cir. 2020). We review the Board’s ultimate obviousness determi- nations on a de novo basis and any underlying factual de- terminations for substantial evidence. Rembrandt Diagnostics, LP v. Alere, Inc., 76 F.4th 1376, 1382 (Fed. Cir. 2023). The scope and content of the prior art is a question of fact. Intel Corp. v. PACT XPP Schweiz AG, 61 F.4th 1373, 1378 (Fed. Cir. 2023). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citation omitted). DISCUSSION Weber appeals the Board’s conclusions that it failed to establish unpatentability of the challenged claims. Weber first argues that the Board erred in its determinations that Weber’s operating manuals were not “printed publica- tion[s]” under pre-AIA 35 U.S.C. § 102(b). Weber next ar- gues that the Board erred in its claim construction of the “disposed over” claim term. Finally, Weber challenges the Board’s determinations that the operating manuals do not disclose the “stop gate” limitation. We address each issue in turn. Case: 22-1751 Document: 95 Page: 10 Filed: 02/08/2024

A. Printed Publications The statutory phrase “printed publication” from § 102 has been defined to mean a reference that was “sufficiently accessible to the public interested in the art.” In re Klopfen- stein, 380 F.3d 1345, 1348 (Fed. Cir. 2004) (citation omit- ted). The touchstone of whether a reference constitutes a printed publication is public accessibility. Jazz Pharms., Inc. v. Amneal Pharms., LLC, 895 F.3d 1347, 1355 (Fed. Cir. 2018). The standard for public accessibility is whether interested members of the relevant public could locate the reference by reasonable diligence. Valve, 8 F.4th at 1376. Weber contends that the Board erred in determining that Weber’s operating manuals were not sufficiently pub- licly accessible to constitute printed publications. Accord- ing to Weber, the Board misapplied our public-accessibility precedent, including Cordis Corp. v. Boston Scientific Corp., 561 F.3d 1319 (Fed. Cir. 2009), and misinterpreted the record evidence. We first address the Board’s reliance on Cordis and then the evidence of record. The Board improperly reviewed this case in the context of the Cordis framework. In Cordis, the references were two academic monographs describing an inventor’s work on intravascular stents that were only distributed to a handful of university and hospital colleagues as well as two companies interested in commercializing the technology. 561 F.3d at 1333–34. We observed that the record con- tained “clear evidence that such academic norms gave rise to an expectation that disclosures will remain confiden- tial.” Id. at 1334. There was also no showing “that these or similar commercial entities typically would make the ex- istence of such documents known and would honor re- quests for public access.” Id. at 1335. Cordis is readily distinguishable from this case. We- ber’s operating manuals were created for dissemination to the interested public to provide instructions about how to assemble, use, clean, and maintain Weber’s slicer, as well Case: 22-1751 Document: 95 Page: 11 Filed: 02/08/2024

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as guidance for addressing malfunctions that users might encounter. J.A. 1313–19 (table of contents); J.A. 1312 (cus- tomer service information). These operating manuals stand in stark contrast to Cordis and the confidential na- ture of the monographs and circumstances surrounding disclosure, including academic confidentiality norms. Where, as here, “a publication’s purpose is ‘dialogue with the intended audience,’ that purpose indicates public acces- sibility.” Valve, 8 F.4th at 1374 (citation omitted). The record evidence shows that Weber’s operating manuals were accessible to interested members of the rel- evant public5 by reasonable diligence. For instance, Weber employees testified that the operating manuals could be ob- tained either upon purchase 6 of the Weber food slicer or upon request directed to a Weber employee. See, e.g., J.A. 2222–34 (Weber employee declaration); J.A. 3288–97 (We- ber employee declaration). Weber’s declarants provided

5 The parties dispute the exact number of customers who received the operating manuals (whether it was ten entities or over forty entities), but we need not resolve that dispute here to review public accessibility. Appellant Br. 31; Appellee Br. 6. No minimum number of occasions of access is dispositive of the public accessibility inquiry in all cases. 6 At oral argument, Provisur’s counsel argued that the high cost of Weber’s commercial slicers prevented the operating manuals from being considered sufficiently ac- cessible by reasonable diligence. Oral Arg. 18:14–19:25. Cost alone cannot be dispositive because the printed-publi- cation inquiry is focused on the interested public, not the general public. See GoPro, Inc. v. Contour IP Holding LLC, 908 F.3d 690, 695 (Fed. Cir. 2018). Here, the interested public includes commercial entities that can afford high- cost slicers. Case: 22-1751 Document: 95 Page: 12 Filed: 02/08/2024

actual examples of deliveries of the operating manuals to customers. E.g., J.A. 2222–34. Weber’s employees’ declarations are corroborated and supported by testimony, delivery notes, invoices, price lists, declarations, and email exchanges between Weber employ- ees and customers. See, e.g., J.A. 4200–427 (Weber invoices and delivery notes); J.A. 7664–68 (customer declaration); J.A. 12754–68 (email correspondence regarding manual dissemination). A Weber employee also testified that the operating manuals were publicly accessible at certain trade shows or at Weber’s factory showrooms. J.A. 9580–612 (Weber employee declaration). Provisur’s Vice-President conceded that Weber sold about forty slicers during the rel- evant time period, and it was Weber’s “general practice” to provide operating manuals with the purchase of each slicer. J.A. 12579–80 (40:7–41:20). The foregoing establishes that the Board’s printed pub- lication determinations are unsupported by substantial ev- idence. See, e.g., In re Enhanced Security Research, 739 F.3d at 1354–57 (affirming the Board’s determination that an operating manual distributed with a software product was publicly accessible because of testimony and advertise- ments); GoPro, Inc. v. Contour IP Holding LLC, 908 F.3d 690, 694–96 (Fed. Cir. 2018) (involving a trade show). The Board’s contrary conclusions on public accessibil- ity were based in part on the Board’s inordinate emphasis on alleged confidentiality restrictions associated with the operating manuals. The Board first reviewed the operating manuals’ copyright notice, which state that the operating manuals may not “be reproduced or transferred in any way.” J.A. 1312. The Board determined that this notice “require[s] confidentiality.” J.A. 29–30; J.A. 106–07. The Board also found another confidentiality restriction based on the intellectual property rights clause from Weber’s terms and conditions, which covers sales of each slicer product, and states “[c]ost estimates, drafts, drawings and Case: 22-1751 Document: 95 Page: 13 Filed: 02/08/2024

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other documents remain the property of [Weber].” J.A. 30 (quoting J.A. 12889); J.A. 107–08. We disagree with the Board’s decisions that the oper- ating manuals were not printed publications because they were subject to confidentiality restrictions. The copyright notice itself allows the original owners and their personnel to copy the operating manual for their own internal use. J.A. 1312. Weber expressly instructed customers who were re-selling their slicers to transfer their operating manuals to purchasing third parties. J.A. 12487. Weber’s assertion of copyright ownership does not negate its own ability to make the reference publicly accessible. Cf. Correge v. Mur- phy, 705 F.2d 1326, 1328–30 (Fed. Cir. 1983) (“A mere as- sertion of ownership can not convert what was in fact a public disclosure and offer to sell to numerous potential customers into a non-disclosure.”). The intellectual prop- erty rights clause from Weber’s terms and conditions cov- ering sales, likewise, has no dispositive bearing on Weber’s public dissemination of operating manuals to owners after a sale has been consummated. We hold that the Board’s determinations that Weber’s operating manuals were not publicly accessible are unsup- ported by substantial evidence. We thus reverse the Board’s finding that Weber’s operating manuals do not qualify as printed publications. B. The “Disposed Over” Limitation A claim term is given its ordinary and customary meaning—the meaning that a term would have to a skilled artisan at the time of the invention. Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005) (en banc). In con- struing a claim term, we first look to the intrinsic evidence, including the claims themselves, the specification, and the prosecution history of the patent. Personalized Media, 952 F.3d at 1340. Case: 22-1751 Document: 95 Page: 14 Filed: 02/08/2024

The Board construed the term “disposed over” to re- quire that the “feed apparatus and its conveyor belts and grippers are ‘positioned above and in vertical and lateral alignment with’ the food article loading apparatus and its lift tray assembly.” J.A. 18; J.A. 95. Weber argues that this construction is incorrect because the Board narrowly construed the “disposed over” term by importing limita- tions from the specification when the claim term only re- quires that the feed apparatus “is generally positioned above” the loading apparatus. Appellant Br. 53. We con- clude that the Board erred in its construction. The claim language itself only recites that the “feed ap- paratus” is “disposed over” the “loading apparatus.” ’812 patent at 11:17–18. The claim language contains no re- strictions that would require direct alignment of the con- veyor belts and lift tray assembly from the two apparatuses. “Had the patent drafter intended to limit the claims” to address the alignment of the conveyor belts and lift tray assembly between the apparatuses, “narrower lan- guage could have been used in the claim.” Cyntec Co. v. Chilisin Elecs. Corp., 84 F.4th 979, 986 (Fed. Cir. 2023). The parties’ experts generally agreed that the plain claim language did not contain additional alignment require- ments. J.A. 9481 (¶74) (Weber’s expert); J.A. 12005 (133:16–22) (Provisur’s expert). Our case law does “not support prescribing a more particularized meaning unless a narrower construction is required by the specification or prosecution history.” 3M Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1329 (Fed. Cir. 2013). Further, the specification does not require the direct alignment of the conveyor belts and lift tray assembly be- tween the two apparatuses. The phrase “disposed over” does not appear in the specification. The specification does explain, which the Board relied on, that the loading appa- ratus’s grippers and lift tray are “in line with the food arti- cle feed paths.” ’812 patent at 2:52–53; 9:10–25. But these passages merely describe the spatial relationship of Case: 22-1751 Document: 95 Page: 15 Filed: 02/08/2024

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specific components—the feed path and grippers as aligned with the loading apparatus’s lift tray. These passages do not disclose a limitation that the feed apparatus, including the conveyer belts that drive the grippers, must be aligned with the loading apparatus and its lift tray. “[A]lthough the specification often describes very specific embodiments of the invention, we have repeatedly warned against con- fining the claims to those embodiments.” Phillips, 415 F.3d at 1323. Our review of the prosecution history does not change our conclusion. The plain language of the claims, read in view of the specification, requires only that the feed apparatus be gen- erally positioned above the loading apparatus. The claim term’s recitation of broad language “compels a similarly broad result.” Malvern Panalytical Inc. v. TA Instruments- Waters LLC, 85 F.4th 1365, 1372 (Fed. Cir. 2023). We need not consider the extrinsic evidence that limits the claim scope in a manner not contemplated by the intrinsic record. Genuine Enabling Tech. LLC v. Nintendo Co., 29 F.4th 1365, 1372–73 (Fed. Cir. 2022). Accordingly, we reverse the Board’s claim construction. We note that Provisur does not dispute that Weber’s prior art satisfies this limitation under Weber’s proposed construction. See generally Appellee Br.; Oral Arg. 7:10– 7:50, 27:54–28. As a result, our review of the Board’s claim construction is dispositive of this issue. We therefore hold that the asserted prior art discloses the “disposed over” lim- itation from claim 1 in each challenged patent. C. The “Stop Gate” Limitation Weber contends that the Board erred in determining that the “product bed conveyer” disclosed in Weber’s oper- ating manuals, including as shown in Figures 10 and 227, does not disclose the “stop gate” limitation. We conclude that the Board’s determinations are not supported by sub- stantial evidence. Case: 22-1751 Document: 95 Page: 16 Filed: 02/08/2024

The claim language requires that the “stop gate” sup- port food articles “when the lift tray assembly is moved from its elevated position” back down to load new food ar- ticles. ’812 patent at 11:33–36. Like the stop gate, the product bed conveyer “supports the transport of the prod- uct” and “prevents the products from sliding into the outlet in an uncontrolled manner.” J.A. 1331. The core remain- ing issue is whether the product bed conveyer is in its floor position when the product bed (lift tray) moves from its el- evated position to the loading position. Figures 10 and 227 below depict the product bed con- veyer (shown in light blue) acting in the supporting floor position when the product holders are at the end of the feed path and the product bed (shown in dark blue) is lowered to receive more food articles.

J.A. 1480 (Fig. 227); Appellant Br. 64. Case: 22-1751 Document: 95 Page: 17 Filed: 02/08/2024

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J.A. 1331 (Fig. 10); Appellant Br. 64. Based on these figures, Weber’s expert testified that a skilled artisan would understand that, because the product holder is near the blade, the food slicer is at the end of the slicing operation and the product holder has finished feed- ing the food article into the blade while the product bed conveyer is in the floor position. J.A. 9486–90 (¶¶86–88). Weber’s expert explained that a skilled artisan would un- derstand that the lift tray moves from its elevated position to its loading position for additional food articles during the fast-slicing operation when the product bed conveyer is in the floor position. Id. In reaching a contrary conclusion, the Board failed to meaningfully consider Weber’s cited Figures 10 and 227 and accompanying expert testimony. J.A. 65–69; J.A. 141– 42. The Board primarily faulted the operating manuals for not physically showing a food article in the slicer or the product conveyor. J.A. 68–69; J.A. 142. But since the prod- uct conveyor is expressly disclosed by the operating manu- als, an image of a food article is not needed to understand those teachings. The evidence offered by Weber, showing Case: 22-1751 Document: 95 Page: 18 Filed: 02/08/2024

that the operating manuals disclose the “stop gate” limita- tion from claim 1 in each challenged patent, leaves the Board’s contrary finding without substantial evidentiary support. Thus, we reverse the Board’s finding. CONCLUSION We have considered Provisur’s remaining arguments and find them unpersuasive. We reverse the Board’s de- terminations that Weber’s operating manuals are not printed publications and that the prior art does not disclose the “disposed over” and “stop gate” limitations. We vacate the Board’s conclusions that Weber failed to establish un- patentability of claims 1–11 of the ’812 patent and claims 1–16 of the ’436 patent, and remand for further proceedings consistent with this opinion. REVERSED-IN-PART, VACATED-IN-PART AND REMANDED COSTS Costs against Provisur.