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Hamilton Beach Brands, Inc. v. f’real Foods, LLC

Absent Cross-Appeal, Fed Cir Declines to Take Up Appellee IPR Time-Bar Challenge

Hamilton Beach Brands, Inc. v. f’real Foods, LLC, __ F.3d __, 2018 WL 6005016 (Fed. Cir. Nov. 16, 2018) (REYNA, Wallach, Taranto) (PTAB) (3 of 5 stars)

Fed Cir affirms IPR decision confirming patent claims against obviousness attack. f’real’s claims related to a mixing/blending machine with a nozzle for rinsing the splash shield after use. The Fed Cir declines to take up a time-bar issue that f’real attempted to present via a Notice of Supplemental Authority in the wake of Click-to-Call Technologies, 899 F.3d 1321 (Fed. Cir. 2018) (en banc in relevant part), which held that the one-year time bar of § 315(b) may be triggered even by an infringement claim that was voluntarily dismissed without prejudice. Because f’real did not file a cross-appeal, its attempt to have the PTAB’s decision vacated and the IPR dismissed as time-barred was improper. As an appellee, f’real may not seek vacatur.

The PTAB did not err in claim construction. The opinion rejects Hamilton Beach’s argument that the PTAB changed claim construction theories midstream without giving the parties a chance to respond. While the PTAB did change several related constructions between the Institution Decision and the Final Decision, the issue was discussed at the oral hearing and the “final adopted constructions . . . , while not identical to those proposed by f’real, are similar enough to f’real’s proposed constructions so as to not constitute changing theories midstream in violation of the APA.” Op. at *5. And the constructions were appropriate under the broadest reasonable interpretation standard.

Substantial evidence supported the Board’s nonobviousness determination.

KEYWORDS: INTER PARTES REVIEW; TIME BAR; CROSS-APPEAL; CLAIM CONSTRUCTION; OBVIOUSNESS (NO)