NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

NESTLE USA, INC.,

Appellant

v.

STEUBEN FOODS, INC.,

Appellee

______________________ 

2016-1750

______________________ 

Appeal from the United States Patent and Trademark 

Office, Patent Trial and Appeal Board in No. IPR2014-

01235.

______________________ 

Decided: May 9, 2017

______________________ 

THOMAS H. JENKINS, Finnegan, Henderson, Farabow, 

Garrett & Dunner, LLP, Washington, DC, argued for 

appellant. Also represented by TYLER MICHAEL AKAGI;

VIRGINIA L. CARRON, KEVIN D. RODKEY, Atlanta, GA. 

THOMAS FISHER, Oblon, McClelland, Maier & Neustadt, LLP, Alexandria, VA, argued for appellee. Also 

represented by SCOTT ANTHONY MCKEOWN; CHARLIE 

AVIGLIANO, W. COOK ALCIATI, Steuben Foods, Inc., Jamaica, NY. 
2 NESTLE USA, INC. v. STEUBEN FOODS, INC. 

______________________ 

Before REYNA, MAYER, and HUGHES, Circuit Judges.

HUGHES, Circuit Judge. 

Nestle USA, Inc. appeals from a final decision of the 

Patent Trial and Appeal Board finding that claims 18–20 

of U.S. Patent No. 6,945,013 were not obvious in view of 

certain prior art. Because the Board erroneously construed the term “aseptic,” we vacate the Board’s decision 

and remand for further proceedings.

I 

Nestle petitioned the Patent Trial and Appeal Board 

for inter partes review (IPR) of claims 18–20 of U.S. 

Patent No. 6,945,013. The claims at issue cover “method[s] for automatically aseptically bottling aseptically 

sterilized foodstuffs,” where bottles are “aseptically disinfect[ed]” “at a rate greater than 100 bottles per minute,” 

and “aseptically fill[ed] . . . with aseptically sterilized 

foodstuffs.” 

The Board instituted IPR and construed the term 

“aseptic,” as used in claims 18–20, to mean “aseptic to any 

applicable United States FDA standard, and in the absence of any such standard, aseptic assumes its ordinary 

meaning of free or freed from pathogenic microorganisms.” J.A. 14. Based on that construction, and in light of 

the prior art references, the Board concluded that an 

ordinarily skilled artisan would not have attained the 

invention claimed in claims 18–20 with a reasonable 

expectation of success. Nestle timely appealed, and we 

have jurisdiction under 28 U.S.C. § 1295(a)(4)(A). 

II

On appeal, Nestle argues that the Board’s construction of “aseptic” is erroneous because it incorporates “any 

applicable United States FDA standard” rather than only 
NESTLE USA, INC. v. STEUBEN FOODS, INC. 3

FDA regulations governing “aseptic packaging.” We 

agree. 

“Pursuant to Teva’s framework and our review of 

Board determinations, we review the Board’s ultimate 

claim constructions de novo and its underlying factual 

determinations involving extrinsic evidence for substantial evidence.” Microsoft Corp. v. Proxyconn, Inc., 789 

F.3d 1292, 1297 (Fed. Cir. 2015). Where “the intrinsic 

record fully determines the proper construction,” our 

review is de novo. Id. In an IPR, the Board must construe terms according to their “broadest reasonable construction.” Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 

2131, 2144 (2016). Of course, “giving claims their broadest reasonable interpretation . . . does not include giving 

claims a legally incorrect interpretation.” Proxyconn, 789 

F.3d at 1298 (quoting In re Skvorecz, 580 F.3d 1262, 1267 

(Fed. Cir. 2009)) (alteration in original). 

“Although words in a claim are generally given their 

ordinary and customary meaning, a patentee may choose 

to be his own lexicographer . . . .” Vitronics Corp. v. 

Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). 

“When a patentee explicitly defines a claim term in the 

patent specification, the patentee’s definition controls.” 

Martek Biosciences Corp. v. Nutrinova, Inc., 579 F.3d 

1363, 1380 (Fed. Cir. 2009). Here, the specification twice 

defines the term “aseptic” as the United States “FDA level 

of aseptic.” ’013 patent col. 1 l. 67–col. 2 l. 2, col. 4 ll. 28–

29. That is a binding lexicography, and therefore, we

construe aseptic to mean the “FDA level of aseptic.” 

The question then is the scope of the phrase “FDA 

level of aseptic.” See Markman v. Westview Instruments,

Inc., 52 F.3d 967, 976 (Fed. Cir. 1995) (The purpose of 

claim construction is to “determin[e] the meaning and 

scope of the patent claims . . . .”). According to Steuben 

Foods, “FDA level of aseptic” incorporates the full “panoply of FDA standards.” Appellee’s Br. at 39 n.2. Similar-
4 NESTLE USA, INC. v. STEUBEN FOODS, INC. 

ly, the Board construed the phrase to incorporate “any 

applicable United States FDA standard.” J.A. 14. Both 

interpretations have the effect, according to their adherents, of requiring anything “aseptically” packaged to 

satisfy the regulatory requirement of 21 C.F.R. 

§ 178.1005(d) that the final product have a hydrogen 

peroxide residue of less than 0.5 ppm.

We disagree. Where the patentee wished to claim 

embodiments requiring less than 0.5 ppm of hydrogen 

peroxide residue, it did so using express language. See 

’013 patent col. 16 ll. 58–60 (“wherein a residual level of 

hydrogen peroxide is less than 0.5 PPM”). Moreover, the

FDA’s hydrogen peroxide residue standard applies to all

foodstuffs, regardless of whether they are aseptically 

packaged. Accordingly, the scope of “aseptic” cannot 

include regulations that apply to foods that are not aseptically packaged. Instead, we confine an “FDA level of 

aseptic” to FDA regulations related to aseptic packaging. 

This approach is supported by the specification’s explanation that the prior art systems failed to “provi[de] a high 

output aseptic filler that complies with the stringent 

United States FDA standards for labeling a packaged 

product as ‘aseptic.’” ’013 patent col. 1 ll. 64–67 (emphasis 

added).

Though the FDA does not define “aseptic” outright, at 

the time of the application, it defined “aseptic processing 

and packaging” as “the filling of a commercially sterilized 

cooled product into presterilized containers, followed by 

aseptic hermetical sealing, with a presterilized closure, in 

an atmosphere free of microorganisms.” 21 C.F.R. 

§ 113.3(a) (1999). And “commercial sterility” was defined 

as “free of viable microorganisms having public health 

significance, as well as microorganisms of nonhealth 

significance, capable of reproducing in the food under 

normal nonrefrigerated conditions of storage and distribution.” Id. § 113.3(e) (1999). These regulations are consistent with the specification, which itself describes
NESTLE USA, INC. v. STEUBEN FOODS, INC. 5

certain microorganism reduction features of the invention 

immediately after defining the term “aseptic.” See ’013 

patent col. 4 ll. 29–33. We find that the FDA definitions 

recited above set forth a reasonable understanding of the 

term “aseptic” within the meaning of the ’013 patent.1

Accordingly, we conclude that the Board’s construction of “aseptic” as incorporating “any applicable United 

States FDA standard” rather than only FDA regulations 

governing “aseptic packaging” was erroneous. Because 

the Board erred in its construction, we vacate the Board’s 

opinion and remand for further proceedings consistent 

with this opinion.

VACATED AND REMANDED

1 We briefly note a separate infirmity with the Board’s 

approach. The Board created a two-step construction: 

first, purporting to apply lexicography, then using the 

plain and ordinary meaning as a default. But a claim 

term cannot mean different things simultaneously. A 

patentee cannot partially serve as a lexicographer for a 

claim term: either the specification includes a binding 

definition of that term by way of lexicography, or it is to 

be read consistent with the plain and ordinary meaning.