Guangdong Alison Hi-Tech Co. v. Int'l Trade Comm'n

• Decision Date: 27 August 2019
• Docket Number: 2018-2042
• Citation: 936 F.3d 1353
• Parties: GUANGDONG ALISON HI-TECH CO., Appellant v. INTERNATIONAL TRADE COMMISSION, Appellee Aspen Aerogels, Inc., Intervenor
• Court: U.S. Court of Appeals — Federal Circuit

936 F.3d 1353

GUANGDONG ALISON HI-TECH CO., Appellant

v. INTERNATIONAL TRADE COMMISSION, AppelleeAspen Aerogels, Inc., Intervenor

2018-2042

United States Court of Appeals, Federal Circuit.

Decided: August 27, 2019

Jonathan Weinberg, King & Spalding LLP, Washington, DC, argued for appellant. Also represented by Paul Whitfield Hughes, McDermott, Will & Emery LLP, Washington, DC; Gary Hnath, Bryan Nese, Mayer Brown LLP, Washington, DC.

Cathy Chen, Office of the General Counsel, United States International Trade Commission, Washington, DC, argued for appellee. Also represented by Dominic L. Bianchi, Wayne W. Herrington.

Proshanto Mukherji, Fish & Richardson, PC, Boston, MA, argued for intervenor. Also represented by Frank Scherkenbach, Kurt Louis Glitzenstein, Andrew Pearson, Kevin Su ; Poongunran Muthukumaran, Aspen Aerogels, Inc., Northborough, MA.

Before Wallach, Hughes, and Stoll, Circuit Judges.

Stoll, Circuit Judge.

Guangdong Alison Hi-Tech Co. is a foreign manufacturer of aerogel insulation products currently subject to a limited exclusion order entered by the U.S. International Trade Commission following an unfair competition investigation. The exclusion order is based in part on the Commission’s final determination that Alison’s products infringe U.S. Patent No. 7,078,359, owned by domestic manufacturer Aspen Aerogels, Inc. Alison appeals the Commission’s final determination that certain claims of the ’359 patent are not indefinite based on their use of the term "lofty ... batting." Alison also challenges the Commission’s final determination that certain claims of the ’359 patent are not invalid on anticipation and obviousness grounds. Because the written description of the ’359 patent informs the meaning of "lofty ... batting" with reasonable certainty, we affirm the Commission on the indefiniteness ground. And because we conclude that the Commission’s factual findings are supported by substantial evidence, we also affirm the Commission on the anticipation ground without reaching the subsidiary obviousness ground.

BACKGROUND

Aspen filed a complaint with the Commission in 2016 alleging that Alison had violated section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337, by importing certain composite aerogel insulation materials that infringe several of its patents, including the ’359 patent. In September 2017, the administrative law judge held that Alison had violated section 337 based, in relevant part, on her determination that certain claims of the ’359 patent were not invalid and were infringed by Alison’s importation of the accused products. In February 2018, the Commission affirmed the ALJ’s initial determination. Relevant here, the Commission held that claims 1, 7, and 9 of the ’359 patent were not invalid and were infringed by Alison. The Commission entered a limited exclusion order barring importation of Alison’s infringing composite aerogel insulation materials.

I

The ’359 patent, titled "Aerogel Composite with Fibrous Batting," is directed to an improvement in aerogel composite products. ’359 patent col. 3 ll. 19–23. Aerogels, first created in the 1930s, are very light materials with excellent insulating properties. To form an aerogel, the liquid component of a gel is replaced with a gas via a specialized drying process that extracts the liquid while keeping the remaining components of the gel intact. The resulting product is highly porous and has low density, but is also very fragile and brittle. To improve flexibility, aerogels can be combined with fibrous materials to form an aerogel composite. The mechanical properties of the resulting composite will vary depending on the fibrous materials used and how they are combined.

The ’359 patent specifically discloses an aerogel composite that uses a "lofty fibrous structure," or "lofty batting," as the fibrous material. Id. at col. 3 ll. 19–30. The ’359 patent defines "lofty batting" as "a fibrous material that shows the properties of bulk and some resilience (with or without full bulk recovery)." Id. at col. 7 ll. 1–3. According to the ’359 patent, the lofty batting reinforces the aerogel in a way that maintains or improves the thermal properties of the aerogel while providing a "highly flexible, drapeable form." Id. at col. 3 ll. 30–40. The ’359 patent represents this as an improvement over prior aerogel composites, which suffer from low flexibility, low durability, and degraded thermal performance. See id. at col. 1 l. 62–col. 3 l. 6.

Independent claim 1 and dependent claims 7 and 9 of the ’359 patent are at issue on appeal. They recite:

1. A composite article to serve as a flexible, durable, light-weight insulation product, said article comprising a lofty fibrous batting sheet and a continuous aerogel through said batting.

7. The composite article of claim 1, further comprising a dopant.

9. The composite article of claim 7, wherein the dopant is present in an amount of about 1 to 20% by weight of the total weight of the composite.

Id. at col. 14 ll. 36–39, 63–64, col. 15 ll. 3–5 (emphases added to disputed claim term).

II

During claim construction proceedings before the ALJ, Alison argued that the claim phrase "lofty ... batting" is indefinite. The ALJ rejected Alison’s indefiniteness argument and adopted the ’359 patent ’s express definition of "lofty ... batting" as "[a] fibrous material that shows the properties of bulk and some resilience (with or without full bulk recovery)." Certain Composite Aerogel Insulation Materials & Methods for Mfg. the Same , Inv. No. 337-TA-1003, Order No. 35, EDIS No. 602687, App. A at 4–6 (Jan. 31, 2017) (Claim Construction Order ). In doing so, the ALJ emphasized that the "bulk" and "resilience" components of the "lofty ... batting" definition are further explained in the specification. Id. at 4. In particular, the ALJ pointed to the specification’s disclosure that bulk is "air" and that a lofty batting is "sufficiently resilient" if "after compression for a few seconds it will return to at least 70% of its original thickness." Id. (quoting ’359 patent col. 7 ll. 45–47, 49). Yet, in construing the term, the ALJ also declined Aspen’s invitation to limit "lofty ... batting" to that example in the specification: a material that is "compressible by at least 50% of its natural thickness and is sufficiently resilient that after compression for a few seconds it will return to at least 70% of its original thickness."

Id. at 4–5; see also ’359 patent col. 7 ll. 40–48. Alison petitioned the Commission for review of the ALJ’s initial determination. The Commission affirmed the ALJ’s construction and declined to review the ALJ’s determination regarding indefiniteness. Thus, the Commission incorporated the ALJ’s indefiniteness holding into its final determination without modification or further comment.

III

In the proceedings before the ALJ, Alison also challenged the validity of the asserted claims of the ’359 patent in view of U.S. Patent No. 5,306,555 ("Ramamurthi"). Titled "Aerogel Matrix Composites," Ramamurthi discloses methods of manufacturing various aerogel matrix composites that incorporate fibers. See Ramamurthi col. 3 l. 53–col. 4 l. 38. The specification describes a series of example composites with varying characteristics. See, e.g. , id. at col. 6 l. 50–col. 9 l. 58 (Example 1-A).

The ’359 patent specification acknowledges Ramamurthi as prior art and expressly distinguishes Ramamurthi’s composites as having a high elastic modulus (i.e., being very stiff) and a relatively high thermal conductivity as compared with the composites disclosed in the ’359 patent. ’359 patent col. 1 l. 62–col. 2 l. 21. During prosecution of the ’359 patent, the examiner considered Ramamurthi and ultimately allowed the claims over Ramamurthi based on the "lofty ... batting" limitation. Alison cited Ramamurthi in a petition for inter partes review of the ’359 patent, but the Patent Trial and Appeal Board denied institution, holding that Alison had not shown that Ramamurthi discloses a "lofty fibrous batting sheet." Guangdong Alison Hi-Tech Co. v. Aspen Aerogels, Inc. , No. IPR2017-00413, 2017 WL 2485089, at *4 (P.T.A.B. June 8, 2017).

In view of this evidence, along with testimony from the parties’ experts, the ALJ rejected Alison’s anticipation and obviousness challenges based on Ramamurthi. The Commission affirmed the ALJ’s determination with only slight modifications not at issue here.

DISCUSSION

On appeal, Alison challenges the Commission’s indefiniteness, anticipation, and obviousness determinations. We have jurisdiction under 28 U.S.C. § 1295(a)(6). We review the Commission’s final determinations under the standards of the Administrative Procedure Act. Ajinomoto Co. v. Int’l Trade Comm’n , 597 F.3d 1267, 1272 (Fed. Cir. 2010) (citing 19 U.S.C. § 1337(c) ). We review the Commission’s factual findings for substantial evidence and its legal determinations de novo. Id. (citing 5 U.S.C. § 706(2) ).

A finding is supported by substantial evidence if a " ‘reasonable mind might accept’ a particular evidentiary record as ‘adequate to support a conclusion.’ " Dickinson v. Zurko , 527 U.S. 150, 162, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (quoting Consol. Edison Co. v. NLRB , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ). Substantial evidence must be sufficient "to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." Norgren Inc. v. Int’l Trade Comm’n , 699 F.3d 1317, 1321 (Fed. Cir. 2012) (quoting Universal Camera Corp. v. NLRB , 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951) ). Thus, "[s]ubstantial evidence is not a fixed quantum of evidence," and "may only be determined with respect to the burden of proof that the litigant bore" in the trial proceedings. Eli Lilly & Co. v. Aradigm Corp. , 376 F.3d 1352, 1363 (Fed. Cir. 2004). Substantial evidence must also "take into account whatever in the record fairly detracts from its weight."

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