On April 24, 2013, the International Trade Commission (the “Commission”) issued its opinion in Certain Wiper Blades (Inv. No. 337-TA-816). In the opinion, the Commission reversed two of Chief ALJ Charles E. Bullock’s Initial Determinations (“ID”).
By way of background, the investigation is based on a complaint filed by Robert Bosch LLC (“Bosch”) alleging violation of Section 337 in the importation and sale of certain “flat” or “beam-type” wiper blade devices that infringe one or more claims of the asserted patents. See our October 27, 2011 post for more details. As explained in our November 2, 2012 post, the Commission determined to review Order Nos. 51 and 52 and the claim constructions these orders turned upon. We now provide the details of the Commission’s opinion.
The first ID, issued as Order No. 51 on October 2, 2012, found that claims 1-6 and 8-10 of U.S. Patent No. 6,611,988 (the ‘988 patent) and all claims of U.S. Patent Nos. 6,553,607 (the ‘607 patent), 6,836,926 (the ‘926 patent) and 6,973,698 (the ‘698 patent) were invalid as indefinite under § 112. See our October 5, 2012 post for more details.
The Commission reviewed the claim construction of the terms “securing means” and “means for securing” in the ‘607 patent. Respondents argued that the patent specification did not disclose sufficient structure that corresponded to the means, asserting that the parenthetical reference numbers in the claim rendered the claim indefinite as it referred to only a partial structure. The Commission disagreed, holding that the parenthetical reference numbers did not limit the claims in a manner contrary to the disclosure in the specification. In other words, the Commission took a more expansive view of “securing means,” construing it as components working in cooperation and rendering the claim valid.
Respondents also argued that the term “considerably shallower” in the ‘988 patent was “insolubly ambiguous” as there was no standard for measuring what was “considerably shallower.” The Commission disagreed, noting that the patent drawings illustrate what was intended, and that this was reinforced by Bosch’s expert. As such, one of skill in the art would understand what is claimed in light of the specification.
Although Respondents argued that the term “where Fwf is an actual contact force exerted on the wiper blade by the wiper arm (18) in condition when it is pressed against its window” in the ‘926 patent was indefinite as it could only be determined by placement on a windshield, the Commission disagreed. Specifically, the Commission reiterated relevant case law holding that “the test for indefiniteness does not depend on a potential infringer’s ability to ascertain the nature of its own accused product to determine infringement, but instead on whether the claim delineates to a skilled artisan the bounds of the invention.”
The phrases “wiper strip having a center section and two end sections, said contact force of said wiper strip being greater in said center section than at least one of said end two sections,” and “a concave curvature that is sharper than the sharpest curvature of a spherically curved window in a region of a wiping field that can be swept across by said wiper blade” from the ‘698 patent were also found to be definite by the Commission. Although Respondents argued that the “wiper strip” and “sharpest curvature” aspects were ambiguous and dependent on environmental factors, the Commission found Bosch’s arguments that these terms are understood in the relevant field to be persuasive. As such, the Commission reversed the ALJ’s summary determination of invalidity.
The second ID, issued as Order No. 52 on October 25, 2012, found that Respondents Danyang UPC Auto Parts Co., Ltd., Pylon Manufacturing Corp., and Scan Top Enterprise Co., Ltd.’s accused products do not infringe the asserted claims of the ‘988 and ‘926 patents, or the asserted claims of U.S. Patent Nos. 6,944,905, 7,293,321 and 7,523,520. See our October 29, 2012 post for more details.
According to the opinion, the ALJ found that the asserted patents were not infringed based on his construction of the term “support element” or “supporting element.” Specifically, the ALJ found that the specifications “disclaimed” the use of brackets to hold the wiper blades. Therefore, the use of “brackets that appear to be substantially different in appearance and function from the brackets typical in the prior art” in the Michelin blades prevented a finding of infringement. However, the Commission noted that criticism is not sufficient to rise to the level of clear disavowal, and the statements pointed to in the asserted patents mostly discuss the costly or expensive support bracket design of the prior art requiring a rigid and complicated frame. Therefore, the Commission held that any disavowal would be limited to those systems, not the very different “bracket” employed by Michelin. As such, the Commission construed “support element” to have its plain and ordinary meaning and reversed the ALJ’s ID of no infringement.
Based on these reversals, the Commission remanded the case to ALJ Bullock for further proceedings.