NOTE: This disposition is nonprecedential.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 

___________________________ 

ERIC C. COHEN, Katten Muchin Rosenman LLP, of 

Chicago, Illinois, argued for appellants Lucky Litter LLC. 

With him on the brief were CAROLYN MILLER PASSEN and 

JEREMY C. DANIEL. 

PAUL V. STORM, Storm LLP, of Dallas, Texas, argued 

for appellant Ourpet’s Company. With him on the brief 

was SARAH M. PAXSON; and V. JAMES ADDUCI II and 

MICHAEL L. DOANE, Adduci, Mastriani & Schaumberg, 

LLP, of Washington, DC. 

MARK B. REES, Attorney, Office of the General Counsel, United States International Trade Commission, of 

Washington, DC, argued for appellee. With him on the 

brief were JAMES M. LYONS, General Counsel, ANDREA C.

CASSON, Assistant General Counsel for Litigation, and 

MEGAN M. VALENTINE, Attorney. 

JEFFREY D. MILLS, King & Spalding LLP, of Washington, DC, argued for intervenor Applica Consumer Products, Inc. With him on the brief were BRUCE W. SLAYDEN 

II and BRIAN C. BANNER. 

VANCE L. LIEBMAN, Funkhouser Vegosen Liebman & 

Dunn Ltd., of Chicago, Illinois, for intervenor Waters 

Research Company. With him on the brief were GLENN 

A. RICE and ORLEY J. MOSKOVITS DESSER. 

__________________________ 

Before DYK, FRIEDMAN, and MOORE, Circuit Judges. 
3 LUCKY LITTER v. ITC

MOORE, 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. and 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. BACKGROUND

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 attached 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 into 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. After construing the 

disputed claim terms, the Commission determined that 
5 LUCKY LITTER v. ITC

the accused products infringed claim 33 of the ’847 patent 

and 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-Cleaning 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 not 

shown 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. DISCUSSION

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 substantial 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 person 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 movable 

between 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 to 

said 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 initiated in response to a cat 

exit,” ALJ Decision at 48, and the Commission declined to 

review this decision, Commission Decision at 5. 
7 LUCKY LITTER v. ITC

The appellants argue that this 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 invention 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 operate on a periodical basis so 

that there is no substantial possibility that the comb 

mechanism will carry out a cleaning 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 discharge 
LUCKY 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 claim 

are 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 clearly disavows claim scope. 

Here, the specification does not support limiting the term 

to a cat exit. This is not a case where the patentee acted 

as 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 its 

own 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 clearly and unmistakably disavows 

predetermined events other than cat exit. The Commission asserted that the specification disavowed periodic 

cleaning, such that claim 33 should require a cat exit, by 

the statement: “Another object 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 operate on a periodical basis 

so that there is no substantial possibility that the comb 

mechanism will carry out a cleaning operation while a cat 

is present in the box.” ’847 patent 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. 
9 LUCKY LITTER v. ITC

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 invention.” 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 “comb move[] toward the discharge 

position 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’s 

ultimate 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 “cat 

exit” limitation, claim 33 is anticipated or rendered obvious by Carlisi. The Commission determined that the 

appellants failed to establish that claim 33 was invalid; 

however, this determination was based in part on its 

conclusion that claim 33 required a cat exit. The Commission found that “it is not 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 between 
LUCKY 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 periodically rakes the litter to remove 

solid waste. Carlisi discloses 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 “a 

manual 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. Maersk 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 and 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/off switch to a mode selector 

switch would have been obvious 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 has 

both 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. See
LUCKY LITTER v. ITC

2009-1470, -1474 

11

11

 

ALJ Decision 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 knowledge 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 and 

cease-and-desist orders. Applica asserts that the Commission erred when construing terms in other asserted 

claims 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. 

CONCLUSION

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.