United States Court of Appeals 

for the Federal Circuit ______________________ 

GOOGLE LLC, ECOBEE, INC.,

Appellants

v.

ECOFACTOR, INC.,

Appellee

______________________ 

2022-1750, 2022-1767

______________________ 

Appeals from the United States Patent and Trademark 

Office, Patent Trial and Appeal Board in Nos. IPR2020-

01504, IPR2021-00792.

______________________ 

Decided: February 7, 2024

______________________ 

MATTHEW A. SMITH, Smith Baluch LLP, Washington, 

DC, argued for all appellants. Appellant Google LLC also 

represented by ELIZABETH LAUGHTON. 

 TIMOTHY J. CARROLL, Venable LLP, Chicago, IL, for appellant ecobee, Inc. Also represented by JUSTIN J. OLIVER, 

Washington, DC; LAURA A. WYTSMA, Los Angeles, CA. 

 JONATHAN LINK, Russ August & Kabat, Washington, 

DC, argued for appellee. Also represented by REZA 

MIRZAIE, Los Angeles, CA. 

 ______________________ 

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2 GOOGLE LLC v. ECOFACTOR, INC. 

Before REYNA, TARANTO, and STARK, Circuit Judges.

REYNA, Circuit Judge. 

Appellants Google LLC and ecobee, Inc. (collectively, 

“Google”) appeal from a Final Written Decision of the 

United States Patent and Trademark Office’s Patent Trial 

and Appeal Board, which found the challenged claims of 

U.S. Patent No. 8,498,753 not unpatentable. Google challenges the Board’s determination on the basis that the 

Board made an erroneous claim construction of a limitation 

in Claim 1. Google also argues that the Board’s Final Written Decision violates the Administrative Procedure Act because Google had no notice or an opportunity to address the 

Board’s construction. We reverse the Board’s claim construction, vacate the Board’s Final Written Decision, and 

remand. 

BACKGROUND 

U.S. Patent No. 8,498,753

EcoFactor, Inc. (“EcoFactor”) is the assignee of U.S. Patent No. 8,498,753 (the “’753 patent”), which is entitled 

“System, Method and Apparatus for Just-In-Time Conditioning Using a Thermostat” and which relates generally 

to climate control systems, such as heating and cooling systems (“HVAC” systems). The ’753 patent discloses a thermostat that takes into consideration factors like outside 

weather conditions and the “thermal characteristics of individual homes in order to improve the ability to dynamically achieve the best possible balance between comfort 

and energy savings.” ’753 patent, 2:1–6. The claimed objective of the ’753 patent is to reduce the cycling time of the 

climate control system, HVAC, when a user seeks a specific 

indoor temperature at a certain time. See, e.g., id. at 9:9–

10. 

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GOOGLE LLC v. ECOFACTOR, INC. 3

Claim 1 is representative and recites the following:1

1. [1a] A method for reducing the cycling time of a 

climate control system, said method comprising:

[1b] accessing stored data comprising a plurality of 

historic internal temperature readings taken 

within a structure and a plurality of measurements 

relating to a plurality of historic external temperatures outside said structure during at least one selected time period;

[1c] determining one or more thermal performance 

values of said structure 

[1d] by correlating at least one of the plurality of 

historic internal temperatures with at least one of 

the plurality of historic external temperatures that 

both occur at a first time during the at least one 

selected time period, and by correlating at least one 

of the plurality of historic internal temperatures 

with at least one of the plurality of historic external 

temperatures that both occur at a second time during the at least one selected time period, 

[1e] wherein said one or more thermal performance 

values indicate a rate of change of temperature in 

said structure in response to changes in outside 

temperatures;

[1f] storing said one or more thermal performance 

values of said structure;

[1g] retrieving a target time at which said structure 

is desired to reach a target temperature;

1 The limitation numbering [1a]–[1m] follows the 

numbering used by the parties both before the Board and 

on appeal. 

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4 GOOGLE LLC v. ECOFACTOR, INC. 

[1h] acquiring at least a first internal temperature 

inside said structure at a third time prior to said 

target time;

[1i] acquiring at least a first external temperature 

relating to a temperature outside said structure at 

the third time prior to said target time;

[1j] obtaining at least one forecasted temperature 

forecasted to occur outside the structure at the target time;

[1k] retrieving at least said one or more thermal 

performance values of said structure that indicate 

said rate of change of temperature in said structure 

in response to changes in outside temperatures;

[1l] retrieving at least one performance characteristic of said climate control system;

[1m] determining a first time prior to said target 

time at which said climate control system should 

turn on to reach the target temperature by the target time based at least in part on [i] said one or 

more thermal performance values of said structure, 

[ii] said performance characteristic of said climate 

control system, [iii] said first internal temperature, 

[iv] said first external temperature, and [v] the 

forecasted temperature; 

. . . .

Id. at 9:9–54. Pertinent to this appeal is the [1m] limitation and inputs [i]–[v] recited in that limitation. 

Proceeding Before the Board 

Google filed a petition to institute an inter partes review (“IPR”) of claims 1–20 of the ’753 patent. J.A. 2. 

Google asserted a single ground: that the combination of 

U.S. Patent No. 5,197,666 (“Wedekind”) in view of U.S. Patent No. 6,216,956 (“Ehlers”) renders claims 1–20 obvious. 

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GOOGLE LLC v. ECOFACTOR, INC. 5

J.A. 2, 11. The Patent Trial and Appeal Board (“Board”)

later instituted the IPR. J.A. 2. 

Following institution, the parties disputed whether 

Wedekind disclosed the portion of claim limitation [1m] 

that reads “determining a first time prior to said target 

time . . . based at least in part on . . . [iii] said first internal 

temperature.” J.A. 18–21, 24–27 (emphasis added). 

Google argued that Wedekind calculated a “first time prior 

to said target time” based on thermal performance values 

(input [i]) which are themselves calculated from internal 

temperature values (input [iii]). See J.A. 433–35; see also

J.A. 439–40. Thus, according to Google, Wedekind’s “first 

time prior to said target” was “based at least in part 

on . . . [iii] said first internal temperature.” See J.A. 433–

35; see also J.A. 439–40 (emphasis added). EcoFactor disagreed, contending that each input in the [1m] limitation 

was distinct and could not be intertwined as Google argued 

or else it would render certain claim limitations meaningless. See J.A. 1263, 1265. Neither party explicitly argued 

for claim construction to resolve the issue. 

On March 3, 2022, the Board issued its Final Written 

Decision in two joined IPRs, Nos. IPR2020-01504 and 

IPR2021-00792. The Board concluded that Google had not 

shown by a preponderance of the evidence that the challenged claims of the ’753 patent were unpatentable. J.A. 1, 

30. In coming to its decision, the Board determined that 

claim construction was unnecessary, and then concluded, 

based on the claim language, that the inputs [i]–[v] of the

[1m] limitation were separate and distinct components 

that required distinctly different input data. See J.A. 25–

26. The Board found that Google’s theory of obviousness 

did “not use each of the five distinct inputs,” but rather 

double counted an input such that it uses “‘one or more 

thermal performance values of said structure’ to satisfy 

both inputs [i] and [iii].” J.A. 26. For this reason, the Board 

found that Google’s obviousness theory, reliant on 

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6 GOOGLE LLC v. ECOFACTOR, INC. 

Wedekind, failed to show that the prior art taught the disputed limitation. J.A. 27.

Google timely appealed. We have jurisdiction under 

28 U.S.C. § 1295(a)(4)(A).

STANDARD OF REVIEW 

We review the issue of claim construction of a patent 

claim de novo with any underlying fact findings reviewed 

for substantial evidence. Dionex Softron GmbH v. Agilent 

Techs., Inc., 56 F.4th 1353, 1358 (Fed. Cir. 2023). We also 

review de novo the Board’s compliance with the Administrative Procedure Act (“APA”). In re NuVasive, Inc., 841 

F.3d 966, 970 (Fed. Cir. 2016).

DISCUSSION 

Google argues that the Board, despite stating otherwise, construed the [1m] limitation of Claim 1. According 

to Google, the Board’s implicit claim construction is wrong 

and requires reversal. EcoFactor contends that the Board 

made no claim construction and that its findings are supported by substantial evidence. We first address whether 

the Board construed Claim 1 of the ’753 patent. 

I. The Board Construed the [1m] Limitation 

A.

It is a bedrock principle of patent law that claims of a 

patent define the scope of a patented invention and the patentee’s right to exclude. See Teva Pharm. USA, Inc. v. 

Sandoz, Inc., 574 U.S. 318, 321 (2015); Markman v. 

Westview Instruments, Inc., 517 U.S. 370, 372 (1996); Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en 

banc). Claims are “the life of the patent,” defining the limits of the patent’s scope. 2 WILLIAM C. ROBINSON, THE LAW 

OF PATENTS FOR USEFUL INVENTIONS §505, at 111 (1890). 

That scope, the Supreme Court explained, “must be known 

for the protection of the patentee, the encouragement of the 

inventive genius of others, and the assurance that the 

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GOOGLE LLC v. ECOFACTOR, INC. 7

subject of the patent will be dedicated ultimately to the 

public.” Gen. Elec. Co. v. Wabash Appliance Corp., 304 U.S. 

364, 369 (1938); see also Motion Picture Pats. Co. v. Universal Film Mfg. Co., 243 U.S. 502, 510 (1917). 

It is also well understood that “[c]laim construction

serves to define the scope of the patented invention and the 

patentee’s right to exclude.” HTC Corp. v. Cellular Comms. 

Equip., LLC, 877 F.3d 1361, 1367 (Fed. Cir. 2017); see O2 

Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 

1351, 1360 (Fed. Cir. 2008). “Claim construction is the judicial statement of what is and is not covered by the technical terms and other words of the claims.” Netword, LLC 

v. Centraal Corp., 242 F.3d 1347, 1352 (Fed. Cir. 2001) (internal quotation marks omitted). 

Less clear, at times, is whether a court or other tribunal has construed a claim or whether it has simply compared the claim to prior art or an allegedly infringing 

technology. While the line between these two inquiries can 

be fine, the answer could be critical given the different 

standard of review applicable to each issue on appeal. Dionex, 56 F.4th at 1358 (reviewing claim construction determination based on intrinsic evidence de novo); Fleming v. 

Cirrus Design Corp., 28 F.4th 1214, 1221–22 (Fed. Cir. 

2022) (reviewing question of whether asserted prior art discloses claim limitation for substantial evidence); Amgen

Inc. v. Hospira, Inc., 944 F.3d 1327, 1335 (Fed. Cir. 2019)

(noting that infringement presents a question of fact reviewed for substantial evidence when tried to a jury). 

To determine whether a court, or the Board, has construed a claim, it is helpful to look to the outcome of the 

tribunal’s analysis. See HTC Corp., 877 F.3d at 1367 (determining that a claim construction occurred where the 

Board’s findings established the scope of the patented subject matter). If the outcome of the analysis of the claim 

term establishes the scope (e.g., boundaries) and meaning 

of the patented subject matter, the court (or the Board) has 

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8 GOOGLE LLC v. ECOFACTOR, INC. 

mostly likely construed the claim. See Netword, 242 F.3d 

at 1352; see also Trading Techs. Int’l, Inc. v. Open E Cry, 

LLC, 728 F.3d 1309, 1319 (Fed. Cir. 2013). Claim construction may be undertaken prior to or in tandem with the tribunal’s review of the allegedly infringing technology or 

prior art. The point in the proceeding at which the analysis 

occurs is not dispositive.2 

B.

In view of the foregoing backdrop, we turn back to the 

Board’s assessment of the ’753 patent’s [1m] limitation on 

appeal. We conclude that the Board construed Claim 1. 

The Board stated that “[b]ecause no express construction is needed for our decision, we do not construe any of 

the claim limitations.” J.A. 15. The Board later concluded, 

however, that the [1m] limitation “recites five distinct inputs upon which the time is based at least in part” and thus

it “requires that each of those inputs be a distinct component of the calculation of the ‘first time prior to said target 

time.’” J.A. 25. In support of this conclusion, the Board 

cited several Federal Circuit cases for the proposition that 

2 The Board performs both claim construction and 

factfinding application of the claims, as do trial judges in 

non-jury cases. However, there are times when different 

decisionmakers have responsibility for claim construction 

and factfinding application of the construction. For example, a trial judge construes a claim and gives that construction to a jury for application to facts. In this instance, the 

jury’s application does not establish a claim construction, 

nor does a post-verdict opinion’s substantial evidence review of the application for reasonableness, taking the furnished construction as a given. See Avid Tech., Inc. v. 

Harmonic, Inc., 812 F.3d 1040, 1048–49 (Fed. Cir. 2016); 

Hewlett-Packard Co. v. Mustek Sys., Inc., 340 F.3d 1314, 

1320–21 (Fed. Cir. 2003). 

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GOOGLE LLC v. ECOFACTOR, INC. 9

“[w]here a claim lists elements separately, the clear implication of the claim language is that those elements are distinct components of the patented invention.” J.A. 25–26 

(cleaned up) (first quoting Becton Dickinson & Co. v. Tyco 

Healthcare Group, LP, 616 F.3d 1249, 1254 (Fed. Cir. 

2010); and then citing Engel Indus., Inc. v. Lockformer Co., 

96 F.3d 1398, 1404–05 (Fed. Cir. 1996)). On this basis, the 

Board determined that “[t]here is nothing in the asserted 

claims to suggest that one piece of data can be used to satisfy multiple inputs.” J.A. 26 (citing CAE Screenplates, Inc. 

v. Heinrich Fiedler GmbH & Co., 224 F.3d 1308, 1317 (Fed. 

Cir. 2000)). The Board then rejected Google’s theory of unpatentability because it did “not use each of the five distinct 

inputs” and instead “effectively ignore[d] a claim limitation 

by double counting.” J.A. 26 (“Petitioner uses the ‘one or 

more thermal performance values of said structure’ to satisfy both inputs [i] and [iii].”). 

As an initial matter, the Board’s statement that it was 

not engaging in claim construction is not dispositive as to 

whether claim construction occurred. We have found implicit claim constructions even when the Board does not 

recognize that it is construing a claim. For example, in 

HTC, we held that “[d]espite no express construction of [a 

claim term] below, [the] Board[’s] findings establish[ed] the 

scope of the patented subject matter.” HTC Corp., 877 F.3d 

at 1367. Those “findings,” we concluded, amounted to

claim construction. See id. 

We agree with Google that the Board’s assessment of 

the [1m] limitation amounts to claim construction. Here, 

the outcome of the Board’s assessment established the 

scope of the [1m] limitation. The [1m] limitation lists five 

enumerated inputs on which the timing for the system to 

activate is “based at least in part on.” ’753 patent, 9:9–10:3. 

However, there is nothing on the face of the claim to discern the scope and boundaries of those inputs, e.g., whether 

one input may be calculated based on another input, and 

whether they must be distinct or may be entwined. Id. To 

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10 GOOGLE LLC v. ECOFACTOR, INC. 

determine, as the Board did, that no input can be based in 

part on another input and that each input must be distinct, 

is to establish a limit to the scope of the [1m] claim limitation. Thus, the Board’s assessment resulted in a construction of the claim. See Netword, 242 F.3d at 1350 

(concluding that the Board effectuated claim construction 

where its determination “establish[ed] the scope and 

boundaries of the subject matter that is patented”); see also

HTC Corp., 877 F.3d at 1367. The limiting impact of the 

Board’s determination is evidenced by the Board’s rejection 

of Google’s argument that a prior art reference’s measurement could satisfy both the input for [i] and the input 

for [iii]. See J.A. 26. Had the Board instead interpreted 

the inputs of [1m] as non-distinct, its basis for rejecting 

Google’s argument would evaporate. 

The cases relied on by the Board support our determination that the Board engaged in claim construction. Each 

of the cases the Board cited relates to interpreting claims 

in the claim construction context. See Becton, 616 F.3d 

at 1254; Engel, 96 F.3d at 1404–05; CAE, 224 F.3d at 1317. 

And the Board relied on these cases to determine the scope 

and meaning of the claims, a claim construction inquiry. 

We conclude that the Board’s assessment qualified as 

claim construction. 

II. The Board’s Claim Construction is Erroneous

We next turn to the Board’s claim construction. Google 

argues that the Board’s claim construction is erroneous for 

two reasons: (1) the Board’s claim construction violated the 

APA; and (2) the limitations imposed by the Board related 

to the [1m] inputs are not supported by the intrinsic record 

or case law. Appellant Br. 44–57. 

A.

The Board’s claim construction did not violate the APA. 

“[T]he Board may adopt a claim construction of a disputed 

term that neither party proposes without running afoul of 

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GOOGLE LLC v. ECOFACTOR, INC. 11

the APA.” Qualcomm Inc. v. Intel Corp., 6 F.4th 1256, 

1262–63 (Fed. Cir. 2021) (collecting cases). The Board, 

however, cannot, without notice and opportunity for the 

parties to respond, change theories midstream by adopting 

a claim construction in its final written decision that neither party requested nor anticipated. SAS Inst., Inc. v. 

ComplementSoft, LLC, 825 F.3d 1341, 1351 (Fed. 

Cir. 2016), rev’d on other grounds, SAS Inst., Inc. v. Iancu, 

138 S. Ct. 1348 (2018); see Qualcomm, 6 F.4th at 1263. 

The record establishes that the parties disputed the 

meaning and scope of the [1m] limitation during the IPR 

proceeding under the same framework now on appeal.3 

Starting with its petition, Google argued that the prior art 

disclosed inputs [i], [iii], and [iv] because the reference used 

inputs [iii] and [iv] to determine input [i]. J.A. 438–39. 

EcoFactor argued that Google’s use of the same value for 

two inputs contravened the plain language of the claim, 

which required distinctly different measurements. See

J.A. 1263, 1265. Google responded in its Reply that there 

“is no negative limitation that would prevent” using inputs 

[iii] and [iv] to calculate input [i]. See J.A. 1456. In its SurReply, EcoFactor opposed Google’s argument that the 

value in the prior art, a historical temperature measurement, could be used to satisfy the two inputs. See J.A. 

1922. According to EcoFactor, this would render parts of 

the claim limitation meaningless. Id. While an explicit 

3 For this same reason, we reject EcoFactor’s argument that Google forfeited its claim construction argument 

on appeal. Summit 6, LLC v. Samsung Elecs. Co., 802 F.3d 

1283, 1290 (Fed. Cir. 2015) (finding no waiver when a 

party’s “argument on [an] issue ha[d] been sufficiently consistent” at trial and at the appellate level); see also In re 

Google Tech. Holdings LLC, 980 F.3d 858, 862 (Fed. Cir. 

2020) (“[This] court mainly uses the term ‘waiver’ when applying the doctrine of ‘forfeiture.’”).

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12 GOOGLE LLC v. ECOFACTOR, INC. 

claim construction was not proposed by either party, both 

parties recognized that the core issue related to the scope

and boundaries of the five inputs enumerated in [1m] and, 

thus, were afforded both notice and opportunity to address 

this issue. We hold, therefore, that because Google “had 

notice of the contested claim construction issues and an opportunity to be heard,” the Board’s claim construction of 

Claim 1 did not violate the APA. Hamilton Beach Brands, 

Inc. v. f’real Foods, LLC, 908 F.3d 1328, 1339 (Fed Cir. 

2018). 

B.

We turn now to whether the Board’s claim construction 

of the [1m] limitation was erroneous. The claim construction dispute before us is decided solely on intrinsic evidence.4 The Board determined that the five inputs5 in the 

4 “We are generally hesitant to construe patent 

claims in the first instance on appeal.” MyMail, Ltd. v. 

ooVoo, LLC, 934 F.3d 1373, 1380 (Fed. Cir. 2019). “Our 

hesitancy is intended to avoid conflating de novo review 

with an independent analysis.” Id.; see also Wavetronix 

LLC v. EIS Elec. Integrated Sys., 573 F.3d 1343, 1355 (Fed. 

Cir. 2009). However, in this case, we are effectively reviewing the Board’s claim construction of the [1m] limitation. 

In any event, the parties agree that this claim construction 

dispute can be decided purely on the intrinsic record. Notably, at oral argument, EcoFactor’s counsel conceded that 

if we conclude that the Board erred and that Google’s reading of the claim is correct, reversal on that construction is 

appropriate. See Oral Arg. 31:20–31:32; see also id. at 

31:33–32:12. 

5 The five inputs include: [i] “said one or more thermal performance values of said structure,” [ii] “said performance characteristic of said climate control system,” [iii] 

“said first internal temperature,” [iv] “said first external 

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GOOGLE LLC v. ECOFACTOR, INC. 13

[1m] limitation are “distinct component[s]” that “must be 

used distinctly from the other listed input[s],” primarily relying on Becton, 616 F.3d at 1253–54 and Engel, 96 F.3d at 

1404 for its conclusion. J.A. 25–27. For the reasons discussed below, we conclude that the Board erroneously construed the [1m] limitation, which is not limited to inputs 

that are entirely separate and distinct. 

“When construing claim terms, we first look to, and primarily rely on, the intrinsic evidence, including the claims 

themselves, the specification, and the prosecution history 

of the patent, which is usually dispositive.” Sunovion 

Pharms., Inc. v. Teva Pharms. USA, Inc., 731 F.3d 1271, 

1276 (Fed. Cir. 2013). Here, the claim language supports 

a broader reading of the [1m] limitation, which must allow 

for any of the five claimed inputs to potentially be used to 

calculate another claimed input. The claim language 

broadly recites that “a first time” is determined “based at 

least in part on” each of the five inputs. ’753 patent, 9:47–

61 (emphasis added). This language places no constraint 

on the manner in which the inputs are used. A patentee 

“is free to choose a broad term and expect to obtain the full 

scope of its plain and ordinary meaning unless the patentee 

explicitly redefines the term or disavows its scope.” 

Thorner v. Sony Comput. Ent. Am. LLC, 669 F.3d 1362, 

1367 (Fed. Cir. 2012). There is no such redefinition or disavowal here. 

Additionally, the specification supports a broader construction of the [1m] limitation than the Board’s construction. The specification contains no restrictive language and 

does not explicitly require that the claim inputs be separate. To the contrary, the specification contemplates an 

embodiment in which one claimed input is calculated based 

on at least one other claimed input. See ’753 patent, 5:47–

temperature,” and [v] “the forecasted temperature.” ’753 

patent, 9:50–54. 

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14 GOOGLE LLC v. ECOFACTOR, INC. 

49. “We normally do not interpret claim terms in a way 

that excludes embodiments disclosed in the specification.” 

Oatey Co. v. IPS Corp., 514 F.3d 1271, 1276 (Fed. Cir. 

2008). In this instance, the Board’s claim construction excluding such an embodiment is incorrect. 

In construing the [1m] limitation, the Board relied on 

Becton, 616 F.3d at 1253–54, and Engel, 96 F.3d at 1404. 

These cases, however, do not mandate the Board’s narrow 

construction of the [1m] limitation. These cases do not create a per se rule that separately listed claim elements are 

distinct components, regardless of the intrinsic record. Indeed, in Becton, we looked to the specification to confirm 

that the claim element “spring means” was separate from 

a hinged arm element. 616 F.3d at 1254. Rather, we have 

explained that there is a “presumption” that separately 

listed claim limitations may indicate separate and distinct 

physical structure, but that presumption may always be rebutted in the context of a particular patent. See, e.g., Powell v. Home Depot U.S.A., Inc., 663 F.3d 1221,1231–32 (Fed. 

Cir. 2011). Here, the claim language and specification rebut any presumption that the five inputs listed in the [1m] 

limitation are distinct components that must be used distinctly from other listed inputs. 

In construing the [1m] limitation, the Board also relied 

on CAE, 224 F.3d at 1317, to support what appears to be a 

claim differentiation determination that “nothing in the asserted claims [] suggest[s] that one piece of data can be 

used to satisfy multiple inputs.” J.A. 26. But the doctrine 

of claim differentiation only creates a rebuttable presumption that each claim in a patent has a different scope; it is

a guide, not a rigid rule of claim construction. See CurtissWright Flow Control Corp. v. Velan, Inc., 438 F.3d 1374, 

1380–81 (Fed. Cir. 2006). Here, the claim language and 

the specification rebut such a presumption. 

In sum, both the claim language and the specification 

support a broader construction than the Board accorded 

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GOOGLE LLC v. ECOFACTOR, INC. 15

the [1m] limitation. The proper construction of the term 

must allow for any of the five claimed inputs to potentially 

be used to calculate another claimed input. We agree, then, 

with Google’s proposed construction, which simply “require[s] that each of the five inputs be used at some point 

during the determination of the first time prior to said target time.” Appellant Br. 52 (emphasis and quotation marks

omitted). Based on the foregoing, we vacate the Board’s 

Final Written Decision and remand with instructions that 

the Board apply this construction on remand.

CONCLUSION 

We conclude that the Board construed the [1m] limitation in Claim 1 and that its construction is erroneous. We

therefore reverse the Board’s construction, vacate the 

Board’s Final Written Decision, and remand for further 

proceedings under the correct construction of the [1m] limitation. 

VACATED AND REMANDED

COSTS 

No costs. 

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