N OTE : This disposition is nonprecedential. 

# United States Court of Appeals **for the Federal Circuit**

__________________________ LUCKY LITTER LLC, Appellant,

AND OURPET’S COMPANY, Appellant,

v. INTERNATIONAL TRADE COMMISSION, Appellee,

AND APPLICA CONSUMER PRODUCTS, INC., Intervenor,

AND WATERS RESEARCH COMPANY, Intervenor.

__________________________ 2009-1470, -1474

__________________________ On appeal from the United States International Trade Commission in Investigation No. 337-TA-625.

___________________________LUCKY LITTER v. ITC 2

Decided: October 6, 2010

___________________________
E RIC C. C OHEN , Katten Muchin Rosenman LLP, of Chicago, Illinois, argued for appellants Lucky Litter LLC. With him on the brief were C AROLYN M ILLER P ASSEN and J EREMY C. D ANIEL

.

P AUL V. S TORM , Storm LLP, of Dallas, Texas, argued for appellant Ourpet’s Compa ny. With him on the brief was S ARAH M. P AXSON ; and V. J AMES A DDUCI I I and M ICHAEL L. D OANE , Adduci, Mastriani & Schaumberg, LLP, of Washington, DC.

M ARK B. R EES , Attorney, Office of the General Counsel, United States International Trade Commission, of Washington, DC, argued for a ppellee. With him on the brief were J AMES M. L YONS , General Counsel, A NDREA C. C ASSON , Assistant General Counsel for Litigation, and M EGAN M. V ALENTINE , Attorney.

J EFFREY D. M ILLS , King & Spalding LLP, of Washington, DC, argued for intervenor Applica Consumer Products, Inc. With him on the brief were B RUCE W. S LAYDEN I I and B RIAN C. B ANNER

.

V

ANCE L. L IEBMAN , Funkhouser Vegosen Liebman & Dunn Ltd., of Chicago, Illinoi s, for intervenor Waters Research Company. With him on the brief were G LENN A. R ICE and O RLEY J. M OSKOVITS D ESSER

.

__________________________

Before D YK , F RIEDMAN , and M OORE , Circuit Judges

.LUCKY LITTER v. ITC 3

M OORE , Circuit Judge

.Lucky Litter LLC (Lucky Litter) and OurPet’s Company (OurPet’s) appeal from the final determination of the International Trade Commission (Commission) that the importation and sale of Lucky Litter’s ScoopFree ® and OurPet’s SmartScoop ® self-cleaning litter boxes violated section 337 of the Tariff Act of 1930, as amended. See 19 U.S.C. § 1337. The Commission entered limited exclusion orders and cease-and-desist orders against Lucky Litter and OurPet’s. See In the Matter of Certain Self-Cleaning Litter Boxes and Components Thereof , Investigation No. 337-TA-625 (U.S.I.T.C. Apr. 28, 2009) ( Commission Decision ). The Commission’s determination and orders were based on its conclusion that the accused products infringed claim 33 of U.S. Patent No. RE 36,847 (’847 patent) and that claim 33 was not invalid. We conclude that the Commission erred when it read a “cat exit” limitation into claim 33, and that without this limitation, claim 33 would have been obvious. Intervenors Applica Consumer Products, Inc. an d Waters Research Company (collectively, Applica) urge alternative bases for upholding the exclusion order; however, we find these arguments to be without merit. Therefore, we reverse the Commission’s determination that claim 33 was not proven to be invalid and vacate the exclusion order.

I. B ACKGROUND

The ’847 patent concerns self-cleaning cat litter boxes. The preferred embodiment is depicted in Figure 1:LUCKY LITTER v. ITC 4

The box depicted in Figure 1 uses a comb 43 to rake waste clumps 71 out of the litter. The comb is mounted on a shaft 41, which is driven by a motor 55. ’847 patent col.3 ll.33-34. The shaft is attach ed to guide wheels 52-53 on each end. Id. col.3 l.18, 23. As the shaft turns, the guide wheels roll along the track. Id. col.3 ll.25-27. The motor is connected to the shaft through a gear train. Id. col.3 ll.31-35. The box has sensors ( 82, 84) to sense the exit of a cat from the litter box. Id. col.4 ll.25-29. After a cat leaves the box, there is a preset time delay to make sure the cat does not come back into the box with unfinished business, id. col.5 ll.29-30, after which the motor is energized, rotating the shaft and driving the comb through the litter to dump the clumps 71 in to the waste receptacle 68. Id. col.5 ll.58-61, col.6 ll.12-26.

Applica sued Lucky Litter and OurPet’s in the Commission seeking to exclude Lucky Litter’s ScoopFree ® and OurPet’s SmartScoop ® from importation into the United States under section 337 of the Tariff Act of 1930, as amended. See 19 U.S.C. § 1337. Af ter construing the disputed claim terms, the Commission determined thatLUCKY LITTER v. ITC 5

the accused products infringed claim 33 of the ’847 patentand that claim 33 was not invalid as anticipated or obvious. Commission Decision at 31-40, 45-52; see also In the Matter of Certain Self-Clean ing Litter Boxes and Components Thereof , Investigation No. 337-TA-625 (Dec. 1, 2008) ( ALJ Decision ). The Commission further determined that the other asserted claims of the ’847 patent were notshown to be invalid but were not infringed. The Commission issued limited exclusion orders and cease-and-desist orders against Lucky Litter’s and OurPet’s self-cleaning litter boxes and components thereof. See Commission Decision at 1. Lucky Litter and OurPet’s appeal. We have jurisdiction under 28 U.S.C. § 1295(a)(1).

II. D ISCUSSION

We review the Commission’s determinations in accordance with the Administrative Procedure Act, see Honeywell Int’l, Inc. v. Int’l Trade Comm’n , 341 F.3d 1332, 1338 (Fed. Cir. 2003), and thus we review the Commission’s factual findings for substant ial evidence and its legal conclusions de novo . 5 U.S.C. § 706(2)(A), (E).

A. Claim Construction

Claim construction is a legal determination that we review de novo

. Cybor Corp. v. FAS Techs., Inc. , 138 F.3d 1448, 1455-56 (Fed. Cir. 1998) (en banc). The words of a claim are generally given their ordinary and customary meaning as understood by a pers on of ordinary skill in the art in question at the time of the invention when read in the context of the specification and prosecution history. See Phillips v. AWH Corp. , 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc).LUCKY LITTER v. ITC 6

Lucky Litter argues that the Commission erroneously construed claim 33 as having a “cat exit” limitation and that without this added limitation, claim 33 is invalid as anticipated or obvious. Claim 33 reads:

33. A self-cleaning cat litter box comprising:

a pan-shaped housing defining an upwardly open litter chamber to be filled to a given fill level with cat litter;

a comb drive coupled to the housing;

a comb extending between two opposed sidewalls and being coupled to the comb drive and movablebetween a storage position and a discharge position, the comb projecting down into the litter chamber to a level below the fill level so that the comb engages clumps in the litter and moves such clumps toward the discharge position; and

a mode selector switch operatively connected tosaid comb drive, the switch being moveable between a manual operation position wherein an operator causes the comb to move toward the discharge position and an automatic operation position wherein the comb moves toward the discharge position automatically upon the occurrence of a predetermined event

.’847 patent, claim 33 (emphasis added). The Administrative Law Judge (ALJ) construed the “automatic operation position” of claim 33 as “a position of the mode selector switch where combing is init iated in response to a cat exit,” ALJ Decision at 48, and the Commission declined to review this decision, Commission Decision at 5.LUCKY LITTER v. ITC 7

The appellants argue that th is construction conflicts with the plain language of the claim, which refers to a predetermined event, not to a cat exit. The appellants explain that in Applica’s request for reissue, Applica stated that claim 1 contained “recitations regarding a cat exit sensor and a delay means which are too limiting of the invention.” J.A. 37238-39. The appellants point out that claim 33 was added during reissue and does not contain the “cat exit” language of claim 1.

The Commission responds that that the specification distinguishes the invention over the prior art in terms of cat exit: “The present inve ntion provides effective improvement for the rake drive of the Carlisi [U.S. Patent No. 5,048,665] device so that movement of the comb or rake through the litter can be made responsive to entry and exit of the cat from the litter box.” ’847 patent col.1 ll.47-50. The Commission argues that the broader plain language interpretation of the “predetermined event” would jeopardize the validity of claim 33 by encompassing the periodic combing described in Carlisi. The Commission asserts that the specification emphasizes that the litterbox is “directly responsive to the exit of a cat from the litter box.” Id. col.1. l.62. The Commission argues that the patent clearly disavows automatic operation on a timed basis because the specification discloses that an object of the invention is to provide an improved rake or comb drive that “does not oper ate on a periodical basis so that there is no substantial possibility that the comb mechanism will carry out a clea ning operation while a cat is present in the box.” Id. col.1 l.63-col.2 l.2.

We conclude that the “automatic operation position” of claim 33 must be construed in accordance with its plain meaning. Claim 33 requires “an automatic operation position wherein the comb moves toward the dischargeLUCKY LITTER v. ITC 8

position automatically upon the occurrence of a predetermined event.” On its face, the claim does not limit the predetermined event to a cat exit. The words of a claimare generally given their ordinary and customary meaning, absent a clear indication otherwise from the specification or prosecution history, as where the patentee acts as his own lexicographer or cl early disavows claim scope. Here, the specification does not support limiting the term to a cat exit. This is not a case where the patentee actedas his own lexicographer and defined the term “predetermined event”; in fact, the words “predetermined event”appear nowhere in the specification. Thus, the specification does not clearly indicate the patentee’s intent to impart a unique meaning to “predetermined event.” See Helmsderfer v. Brobrick Washroom Equip., Inc. , 527 F.3d 1379, 1381 (Fed. Cir. 2008) (“A patentee may act as itsown lexicographer and assign to a term a unique definition that is different from its ordinary and customary meaning; however, a patentee must clearly express that intent in the written description.”). In addition, nothing in the specification clearl y and unmistakably disavowspredetermined events other than cat exit. The Commission asserted that the specification disavowed periodic cleaning, such that claim 33 sh ould require a cat exit, by the statement: “Another obje ct of the invention is to provide a new and improved comb drive for a self-cleaning cat litter box that is capable of remaining in[] operation for extended periods of time without attention from the cat owner and that does not op erate on a periodical basis so that there is no substantial possibility that the comb mechanism will carry out a clea ning operation while a cat is present in the box.” ’847 pate nt col.1 l.63-col.2 l.2. This statement falls short of the type of clear and unmistakable disavowal required to limit the ordinary meaning of a claim term.LUCKY LITTER v. ITC 9

Moreover, the prosecution history shows that the patentee viewed his invention more broadly and sought reissue to remove “cat exit sensor and delay means which are too limiting of the invent ion.” J.A. 37238. Although the original claim set included claims requiring “a cat exit sensor” for actuating the self-cleaning operation after “sensing exit of a cat from the litter chamber,” claim 33, which was added during reissue, does not contain this limitation. Claim 33 makes no mention of a cat exiting the litter box. We will not read in a cat exit limitation into this claim. In short, nothing in the claim language, specification, or prosecution history requires a cat exit limitation. The “automatic operation position” of claim 33 requires only that the “com b move[] toward the dischargeposition automatically upon the occurrence of a predetermined event.” ’847 patent, claim 33.

B. Validity

“Obviousness is a question of law based on underlying factual inquiries, and thus we review the Commission’sultimate determination de novo and factual determinations for substantial evidence.” Vizio, Inc. v. Int’l Trade Comm’n , 605 F.3d 1330, 1342 (Fed. Cir. 2010).

Lucky Litter and OurPet’s argue that without the “catexit” limitation, claim 33 is anticipated or rendered obvious by Carlisi. The Commission determined that the appellants failed to establis h that claim 33 was invalid; however, this determination was based in part on itsconclusion that claim 33 required a cat exit. The Commission found that “it is no t apparent that Carlisi discloses a switch for selecting between a manual operation and an automatic operation,” as required by claim 33. Commission Decision at 45; see ’847 patent, claim 33 (requiring “a mode selector switch . . . moveable betweenLUCKY LITTER v. ITC 10

a manual operation position . . . and an automatic operation position”).

Lucky Litter and OurPet’s contend that Carlisi discloses a mode selector switch and thus anticipates claim 33. Carlisi discloses a self-cleaning litter box with a timing device that periodica lly rakes the litter to remove solid waste. Carlisi disclose s an on/off switch “for actuation of the cleaning process.” Carlisi col.3 l.50. Carlisi also discloses that its litter box can be operated in “amanual fashion, where the rake member is moved manually” or in response to predetermined conditions or a timer mechanism (i.e., automatic operation). Id. col.3 ll.19-20, 51-54. Lucky Litter asserts that the on/off switch is the mode selector switch. What a particular reference discloses is a question of fact. Transocean Offshore Deepwater Drilling, Inc. v. Ma ersk Contractors USA, Inc. , -- F.3d --, 2010 WL 3257312, *3 (Fed . Cir. Aug. 18, 2010). It is not at all clear from Carlisi that its on/off switch is used to select between manual an d automatic modes. Thus, the Commission’s finding that Carlisi does not disclose a mode selector switch is supported by substantial evidence.

The appellants also argue that claim 33 is invalid because converting Carlisi’s on/o ff switch to a mode selector switch would have been obviou s to one of ordinary skill in the art. We agree that even if Carlisi does not precisely disclose a mode selector switch, modifying Carlisi’s litter box to include such a switch would have been trivial to one of ordinary skill in the art. Indeed, if a litter box hasboth a manual operation mode and an automatic operation mode, it is unclear how one would select between these two modes if not by a switch. The Commission determined that one of ordinary skill in the art would have had knowledge of switch hardware, circuitry, control logic, microcontrollers, and computer programming. SeeLUCKY LITTER v. ITC

2009-1470, -1474 11

11 ALJ Decisio n at 78. Thus, it would have been obvious to one of ordinary skill in the art to add a switch to Carlisi’s litter box to move the box between manual and automatic modes. Accordingly, we conclude that claim 33 would have been obvious.

Because we conclude that claim 33 is obvious in view of Carlisi and the general know ledge of those of ordinary skill in the art about switches, we do not address the appellants’ additional bases for obviousness.

Applica urges alternative bases to support a violation of section 337 and to uphold the exclusion orders andcease-and-desist orders. Applica asserts that the Commission erred when construing terms in other assertedclaims of the ’847 patent, and that under Applica’s proposed constructions, the accused litter boxes infringe these other claims. 1 We find these arguments to be without merit. We see no error in the Commission’s construction of the disputed terms in these additional claims, and we conclude that these other claims do not establish a violation under 19 U.S.C. § 1337.

C ONCLUSION

For the foregoing reasons, we reverse the Commission’s determination of a violation under section 337 of the Tariff Act of 1930, as amended ( see 19 U.S.C. § 1337),and vacate the corresponding exclusion orders and ceaseand-desist orders.

REVERSED AND VACATED

1 Specifically, Applica argues that Lucky Litter’s ScoopFree ® litter box infringes claims 27, 41, and 42 under its proposed constructions and OurPet’s SmartScoop ® litter box infringes claims 24, 25, 31, and 31.