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Guangdong Alison Hi-Tech Co. v. International Trade Commission

Numerical Precision Not Required to Meet Definiteness Standard

Guangdong Alison Hi-Tech Co. v. International Trade Commission, __ F.3d __, 2019 WL ___ (Fed. Cir. Aug. 27, 2019) (Wallach, Hughes, STOLL) (ITC) (3 of 5 stars)

Fed Cir affirms ITC’s exclusion order arising from its determination that Alison’s products infringed patent asserted by complainant Aspen Aerogels. The patent related to composite aerogel products.

Definiteness: The ITC did not err in confirming the patent’s definiteness as to the limitation “lofty batting.” While the limitation is a term of degree, definiteness does not require the “mathematical precision” Alison sought. Op. at 10 (quoting Sonix, 844 F.3d 1370 (Fed. Cir. 2017)). The opinion describes how the intrinsic and extrinsic evidence was sufficient to inform a person of ordinary skill about the meaning of “lofty” in this context. It rejects Alison’s argument that the patent taught two ways to measure loftiness without distinguishing among them as both waived and inadequate on the merits because Alison did not establish that the two techniques led to different results. It also rejects Alison’s argument that ITC erred in failing to limit “lofty” to the description in the specification. This was again waived, and inadequate on the merits. “Under our case law, examples in the specification may be used to inform those skilled in the art of the scope of the invention with reasonable certainty . . . without being directly construed into the claim.” Op. at 15.

Novelty & nonobviousness: Substantial evidence supported the ITC’s confirmation of novelty. A key reference was silent as to whether its disclosed batting was “lofty,” and the opinion describes Alison’s failure to carry its burden to prove that the required loftiness was necessarily present. Because Alison was relying on the same reference to prove “loftiness” in its obviousness case, it was unnecessary to reach Alison’s separate obviousness arguments.

KEYWORDS: INDEFINITENESS (NO); TERMS OF DEGREE; ANTICIPATION (NO); OBVIOUSNESS (NO); ITC; SECTION 337