Chamberlain Group, Inc. v. Itc

Case: 20-1965 Document: 85 Page: 1 Filed: 04/27/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
THE CHAMBERLAIN GROUP, INC.,
Appellant
v.
INTERNATIONAL TRADE COMMISSION,
Appellee
NORTEK, INC., NORTEK SECURITY & CONTROL
LLC, FKA LINEAR, LLC, GTO ACCESS SYSTEMS,
LLC, FKA GATES THAT OPEN, LLC,
Intervenors
-------------------------------------------------
NORTEK, INC., NORTEK SECURITY & CONTROL
LLC, FKA LINEAR, LLC, GTO ACCESS SYSTEMS,
LLC, FKA GATES THAT OPEN, LLC,
Appellants
v.
INTERNATIONAL TRADE COMMISSION,
Appellee
THE CHAMBERLAIN GROUP, INC.,
Intervenor
______________________
2020-1965, 2021-1829
Case: 20-1965 Document: 85 Page: 2 Filed: 04/27/2023
2 CHAMBERLAIN GROUP, INC. v. ITC
______________________
Appeals from the United States International Trade
Commission in Investigation No. 337-TA-1118.
______________________
Decided: April 27, 2023
______________________
JAMES MURPHY DOWD, Wilmer Cutler Pickering Hale
and Dorr LLP, Los Angeles, CA, argued for appel-
lant. Also represented by DAVID CHARLES MARCUS.
CARL PAUL BRETSCHER, Office of the General Counsel,
United States International Trade Commission, Washing-
ton, DC, argued for appellee. Also represented by DOMINIC
L. BIANCHI, WAYNE W. HERRINGTON, SIDNEY A. ROSENZW-
EIG.
EVAN SKINNER DAY, Perkins Coie, LLP, San Diego, CA,
argued for cross-appellants. Also represented by MATTHEW
COOK BERNSTEIN; DAN L. BAGATELL, Hanover, NH; JAMES
B. COUGHLAN, Washington, DC; ANDREW DUFRESNE, Mad-
ison, WI.
______________________
Before STOLL, SCHALL, and STARK, Circuit Judges.
STARK, Circuit Judge.
The Chamberlain Group, Inc. (“Chamberlain”) filed a
complaint with the International Trade Commission
(“Commission”) against Nortek, Inc., Nortek Security &
Control LLC, and GTO Access Systems LLC (collectively,
“Nortek”), alleging that Nortek’s importation, sale for im-
portation, or sale after importation of movable barrier op-
erator systems and components thereof violated section
337 of the Tariff Act of 1920, 19 U.S.C. § 1337. Specifically,
Chamberlain alleged that certain of Nortek’s garage door
Case: 20-1965 Document: 85 Page: 3 Filed: 04/27/2023
CHAMBERLAIN GROUP, INC. v. ITC 3
openers infringed U.S. Patent Nos. 6,741,052 (“’052 pa-
tent”), 8,587,404 (“’404 patent”), and 7,755,223 (“’223 pa-
tent”). The Commission issued Final Determinations on
April 22, 2020 and December 3, 2020, finding no infringe-
ment of the ’052 and ’404 patents and infringement of the
’223 patent. See In the Matter of Certain Movable Barrier
Operator Systems and Components Thereof, Inv. No. 337-
TA-1118, 2020 WL 7223401 (Dec. 3, 2020) (Final); In the
Matter of Certain Movable Barrier Operator Systems and
Components Thereof, Inv. No. 337-TA-1118, 2020 WL
1987053 (Apr. 22, 2020) (Final).
Chamberlain appeals the Commission’s Final Determi-
nation of April 22, 2020 regarding the ’052 patent and the
’404 patent. Nortek appeals the Commission’s Final Deter-
mination of December 3, 2020 regarding the ’223 patent.
With respect to the ’052 patent, which has expired, we
vacate and remand for the Commission to dismiss the in-
fringement claim as moot. We also vacate and remand the
Commission’s determination concerning the ’404 patent be-
cause it is based on the application of an incorrect construc-
tion of “movable barrier operator.” We affirm the
Commission’s determination that Nortek infringed the ’223
patent.
I
A
The patents involved here teach features of movable
barrier systems, such as automatic garage door openers.
The ’052 patent, entitled “Post-Automatically Determined
User-Modifiable Activity Performance Limit Apparatus
and Method,” discloses a control system combining auto-
matic calibration and manual calibration adjustments. In
particular, the described control system automatically de-
termines a safety threshold at which to stop operating
(thereby preventing the movable barrier from closing when
its path is blocked) while still permitting the user to
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4 CHAMBERLAIN GROUP, INC. v. ITC
manually adjust the automatically determined threshold
level. The ’052 patent expired on April 11, 2022, during the
pendency of this appeal.
The ’404 patent, entitled “Movable Barrier Operator
and Transmitter with Imminent Barrier Moving Notifica-
tion,” teaches a movable barrier operator that plays a
sound – for instance, an alarm – indicating that a barrier
is imminently about to move, but only does so when the
barrier is operated remotely. The sound is not played when
the movable barrier operator is operated locally. The sys-
tem determines whether to sound the imminent barrier
warning by distinguishing between whether it received a
signal from a remote source, such as a smartphone, or from
a local source, such as a button on a garage wall.
Figure 1 from the ’404 patent depicts a garage door
opener practicing the invention:
Item 12 in the figure is a “head unit” and item 40 is a “wall
station.” The head unit is connected to the wall station by
a wire, item 41.
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CHAMBERLAIN GROUP, INC. v. ITC 5
Chamberlain asserted claim 11 of the ’404 patent,
which recites:
A movable barrier system with a moving-bar-
rier imminent motion notification, the system
comprising:
[a] a movable ba[rri]er operator connected to
control movement of a movable barrier be-
tween a first position and a second position;
[b] the movable barrier operator comprising:
a communication connection comprising at
least one of the group consisting of: a direct
wireless connection to a transmitter, a local
wired connection, a system wired connection,
a network connection, and a wireless commu-
nication system connection; and
[c] a processor configured to determine
whether a received command for a closing the
movable barrier was received from at least
one of the system wired connection, the net-
work connection, and the wireless communi-
cation system connection;
[d] the processor configured to effect the clos-
ing of the movable barrier in combination
with operating a moving barrier imminent
motion notification in response to determin-
ing that the received command for the closing
was received from at least one of the system
wired connection, the network connection,
and the wireless communication system con-
nection;
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6 CHAMBERLAIN GROUP, INC. v. ITC
[e] the processor configured to determine
whether the received command for the closing
was received from at least one of the direct
wireless connection to the transmitter and the
local wired connection;
[f] the processor configured to effect the clos-
ing of the movable barrier without operating
the moving-barrier imminent motion notifica-
tion in response to determining that the re-
ceived command for the closing was received
from at least one of the direct wireless connec-
tion to the transmitter and the local wired
connection.
(Element labels and emphasis added) The parties’ dispute
largely centers on element [b].
Each of the products Chamberlain accuses of infringing
the ’404 patent (which we will refer to as the “’404 Accused
Products”) has a ceiling-mounted head unit containing a
motor and a processor, a wall station with a button and a
processor, wires connecting the head unit and the wall sta-
tion, and an alarm system. All of the ’404 Accused Prod-
ucts, except for the Mighty Mule MM9333H and
MM9333HA, also have a Wi-Fi receiver in the wall station.
The ’404 Accused Products can be subdivided into two
categories. First are the “’404 Original Products,” which
include private label products. In the ’404 Original Prod-
ucts, the processor in the head unit performs the functions
described in elements [c]-[f] of claim 11 of the ’404 patent.
Second are the “’404 Alternative Products,” which incorpo-
rated changes Nortek made to the software of the ’404 Orig-
inal Products near the end of fact discovery. The ’404
Alternative Products differ from the ’404 Original Products
only in their software; the hardware is identical. Conse-
quently, and pertinent to the issues before us, for the ’404
Alternative Products the processor in the wall station
Case: 20-1965 Document: 85 Page: 7 Filed: 04/27/2023
CHAMBERLAIN GROUP, INC. v. ITC 7
performs the functions described in elements [c]-[f] of claim
11, rather than the processor in the head unit doing so, as
in the ’404 Original Products.
The ’223 patent, entitled “Movable Barrier Operator
with Energy Management Control and Corresponding
Method,” teaches a movable barrier operator system with
at least two different “operating modes,” in which one of
the operating modes consumes less energy. Chamberlain
asserted claims 1 and 21, which are identical in pertinent
part. Claim 1 recites:
A movable barrier operator apparatus com-
prising:
a power supply that operably couples to at
least one source of alternating current;
an obstacle detector; and
a movable barrier operator which includes a
controller, the movable barrier operator oper-
ably coupled to the power supply, receives op-
erating power from the power supply and has
at least a first and a second mode of energy
consumption operation and being further con-
figured and arranged to:
selectively open and close a corresponding
movable barrier; and
develop an obstacle detector operating mode
control signal from the controller as a function
of movable barrier operator system state in-
formation that indicates whether the barrier
is open or closed, the obstacle detector operat-
ing mode control signal being operable to di-
rectly control the energy usage of the obstacle
Case: 20-1965 Document: 85 Page: 8 Filed: 04/27/2023
8 CHAMBERLAIN GROUP, INC. v. ITC
detector, the control signal from the controller
developed as a result of the state information,
the state information selected from the group
consisting of motor state information, time in-
formation, transmission state information,
voltage state information, switch state infor-
mation and combinations thereof,
the obstacle detector operably coupled to the
power supply and to the movable barrier op-
erator, receives operating power from the
power supply, and has a plurality of operating
modes, wherein at least some of the operating
modes have different energy usages, and
wherein the obstacle detector is directly re-
sponsive to the movable barrier operator ob-
stacle detector operating mode control signal
such that:
during the first mode of energy consumption
operation, the obstacle detector operates using
a first energy usage; and
during the second mode of energy consumption
operation, the obstacle detector operates using
a second energy usage, wherein the operating
power used in one of the energy usages is less
than the power used by the other energy us-
age.
(Emphasis added)
Chamberlain asserted the ’223 patent against multiple
Nortek branded and private label garage door openers (the
“’223 Accused Products”).
Case: 20-1965 Document: 85 Page: 9 Filed: 04/27/2023
CHAMBERLAIN GROUP, INC. v. ITC 9
B
A Commission administrative law judge (“ALJ”) issued
a claim construction order construing, as relevant here, the
term “movable barrier operator,” as used in the ’404 patent,
and “operates,” as used in the ’223 patent. The ALJ con-
strued “movable barrier operator” according to its plain
and ordinary meaning, rejecting Nortek’s proposal, which
would have narrowed the movable barrier operator to “an
assembly that contains a motor to operate a movable bar-
rier, also known as a head unit.” J.A. 26 (emphasis added).
The ALJ explained that “[t]he only time the specification
references a head unit in relation to the movable barrier
operator is as a non-limiting ‘example.’” J.A. 26 (quoting
’404 patent at 5:36-38). Under the ALJ’s construction,
therefore, a wall station could function as a movable bar-
rier operator.
The ALJ concluded no construction was needed for “op-
erates” because its plain and ordinary meaning was clear.
She rejected Nortek’s proposal that “operates” means
“[w]orks or functions,” a construction she thought would
improperly import a requirement that the obstacle detector
must always be energized to a level sufficient to perform
“work” or perform its ordinary obstacle-detecting functions.
J.A. 19 (citing ’223 patent at 6:34-38). The ALJ further ex-
plained that the specification undermined Nortek’s pro-
posed construction, observing that it disclosed an
embodiment of an obstacle detector that is only intermit-
tently functional in its low-energy mode.
Following a hearing, the ALJ issued an Initial Deter-
mination on the merits, finding no violation of § 1337 with
respect to any of the three asserted patents. Regarding the
’052 patent, the ALJ found the asserted claim was invalid
due to obviousness. On the ’404 patent, the ALJ concluded
– in contradiction to her previous claim construction order
– that “the ‘movable barrier operator’ of claim 11 does not
encompass a ‘wall station’ that is found in a 404 Accused
Case: 20-1965 Document: 85 Page: 10 Filed: 04/27/2023
10 CHAMBERLAIN GROUP, INC. v. ITC
Product.” J.A. 75. She now found the “movable barrier op-
erator” to be limited to the head unit “as a matter of claim
construction.” J.A. 76 (capitalization altered); see also J.A.
101-02. Because Chamberlain identified a processor in the
wall station as satisfying elements [c] through [f] in the
’404 Alternative Products, there was no “movable barrier
operator” in the ’404 Alternative Products, and they did not
infringe. The ALJ also found that Chamberlain abandoned
its argument that the wires connecting the wall station and
the head unit constitute the “local wired connection” of el-
ement [b], and further that Chamberlain’s contention that
“a button on the wall station” satisfied that element was
untimely. Thus, all of the ’404 Accused Products did not
infringe claim 11.
Finally, the ALJ found that the ’223 Accused Products
did not “operate” in a low-energy mode, because the obsta-
cle detectors could not perform any function when they
were in what Chamberlain alleged was the low-energy
mode. Therefore, the ’223 Accused Products did not in-
fringe. This conclusion appeared to be in tension with the
ALJ’s view of the claims at the time of claim construction,
when she had rejected Nortek’s proposal to import a “works
or functions” requirement into the term “operates.”
Chamberlain petitioned for Commission review of the
ALJ’s findings in the Initial Determination, and Nortek
filed a contingent petition. In a Final Determination is-
sued on April 22, 2020, the Commission adopted the ALJ’s
findings and conclusions for the ’052 patent (finding inva-
lidity) and the ’404 patent (finding no infringement). The
Commission addressed the ’223 patent in a separate Final
Determination issued on December 3, 2020, in which it dis-
agreed with the ALJ’s application of the term “operates,”
explaining that she “diverged from the plain meaning . . .
when . . . requir[ing] the obstacle detector to perform some
function or operation when it is in the lower energy mode.”
J.A. 360. The Commission concluded that under the
Case: 20-1965 Document: 85 Page: 11 Filed: 04/27/2023
CHAMBERLAIN GROUP, INC. v. ITC 11
correct application of the claim construction the ’223 Ac-
cused Products infringe claims 1 and 21.
Chamberlain and Nortek both timely appealed. We
have jurisdiction under 28 U.S.C. § 1295(a)(6).
II
We review the Commission’s legal determinations, in-
cluding its claim construction, de novo and its factual find-
ings for substantial evidence. See Honeywell Int’l, Inc. v.
Int’l Trade Comm’n, 341 F.3d 1332, 1338 (Fed. Cir. 2003).
We review the Commission’s procedural and evidentiary
decisions, including forfeiture determinations, for abuse of
discretion. See Winbond Elecs. Corp. v. Int’l Trade
Comm’n, 262 F.3d 1363, 1370 (Fed. Cir. 2001); F.lli De
Cecco Di Filippo Fara S. Martino S.p.A. v. United States,
216 F.3d 1027, 1031 (Fed. Cir. 2000).
III
We consider the Commission’s determinations on each
patent in turn. First, the parties agree that the expiration
of the ’052 patent rendered their dispute regarding that pa-
tent moot. Second, we vacate the Commission’s determi-
nation regarding the ’404 patent because its analysis relied
on an incorrect construction of the claim term “movable
barrier operator.” Finally, we affirm the Commission’s de-
termination regarding the ’223 patent because it correctly
applied the plain and ordinary meaning of “operates” as
used in that patent.
A
The ’052 patent expired on April 11, 2022. Because the
Commission can only grant prospective relief, and because
its determinations do not have preclusive effect in district
courts, Chamberlain can no longer receive the relief it re-
quested from the Commission (i.e., an exclusion order). See
Hyosung TNS Inc. v. Int’l Trade Comm’n, 926 F.3d 1353,
1358-59 (Fed. Cir. 2019). Hence, as the parties agree,
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12 CHAMBERLAIN GROUP, INC. v. ITC
Chamberlain’s appeal is moot. Accordingly, we vacate the
portion of the Commission’s Final Determination of April
22, 2020 addressing the ’052 patent and remand so the
Commission can dismiss the action, in relevant part, as
moot. See United States v. Munsingwear, Inc., 340 U.S. 36,
39-40 (1950).
B
Chamberlain argues that the Commission made two
errors with respect to the ’404 patent. First, the Commis-
sion erred in adopting the ALJ’s second construction of
“movable barrier operator,” which limited the term to a
“head unit” and excluded the “wall station.” Second, the
Commission erred in adopting the ALJ’s conclusion that
Chamberlain abandoned its “local wired connection” in-
fringement theory and tried to replace it with an untimely,
and meritless, “button” theory in its post-hearing brief. We
agree with Chamberlain that the ALJ applied an incorrect
construction for “movable barrier operator,” which im-
pacted the entire infringement analysis for the ’404 patent,
including the ALJ’s forfeiture decision. Thus, we vacate
the portion of the Commission’s Final Determination of
April 22, 2020 adopting these findings by the ALJ and re-
mand to the Commission for further proceedings based on
the proper construction. 1
1 We disagree with the ALJ and Nortek that Cham-
berlain forfeited its arguments regarding the scope of “mov-
able barrier operator.” Chamberlain consistently
maintained that the “movable barrier operator” in the ’404
Accused Products may be housed within the head unit
and/or the wall unit. In its claim construction brief, for ex-
ample, Chamberlain expressly stated that “the movable
barrier operator” is “not . . . limit[ed] . . . to any specific as-
sembly or arrangement.” J.A. 10111. In its pre-hearing
brief, Chamberlain argued that the “movable barrier
Case: 20-1965 Document: 85 Page: 13 Filed: 04/27/2023
CHAMBERLAIN GROUP, INC. v. ITC 13
In the post-hearing Initial Determination, the ALJ con-
cluded, as a matter of claim construction, that the “movable
barrier operator” cannot include a processor located within
the system’s wall station, despite previously having found
that the term should have its plain and ordinary meaning.
See J.A. 76 (“[A]s a matter of claim construction, ‘movable
barrier operator’ is distinct from ‘wall station.’”) (capitali-
zation altered); J.A. 101-02 (“As a matter of claim construc-
tion, the ‘movable barrier operator,’ which possesses the
claimed ‘processor,’ does not encompass a wall station.”).
We agree with Chamberlain that the narrow construction
the ALJ adopted in the Initial Determination is erroneous.
Nothing in the ’404 patent’s claims or written descrip-
tion would demonstrate to a person of ordinary skill in the
art that the “movable barrier operator” is necessarily lim-
ited to head units, to the exclusion of wall stations. The
term is not defined in the specification, nor was there any
clear and unambiguous disclaimer of claim scope during
prosecution. Therefore, the correct construction is the
term’s plain and ordinary meaning as understood by a
skilled artisan in the context of the patent. See Thorner v.
operator” should not be limited to the head unit and that
the ’404 Alternative Products contained “a movable barrier
operator comprising a head unit and a wall station.” J.A.
10621-23. Chamberlain solicited testimony at the hearing
from its expert supporting this contention. See J.A. 1291
(Chamberlain’s expert testifying that wall station in ’404
Alternative Products is “very much part of the operator. . . .
[I]t actually implements some of the electronics circuitry
that is required for the system.”). After the hearing, Cham-
berlain argued that its expert had demonstrated that “the
circuitry in the wall station of the ’404 Accused Products is
part of the claimed “movable barrier operator” because it
“receives, processes, and effects commands, including com-
mands to close the garage door.” J.A. 13835.
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14 CHAMBERLAIN GROUP, INC. v. ITC
Sony Comput. Ent. Am. LLC, 669 F.3d 1362, 1365 (Fed.
Cir. 2012). Moreover, as there is no contrary indication in
the patent, the “movable barrier operator” limitation may
be satisfied by multiple discrete components functioning
together. See Cross Med. Prods., Inc. v. Medtronic Sofamor
Danek, Inc., 424 F.3d 1293, 1309 (Fed. Cir. 2005) (“Alt-
hough the sole embodiment described in the specification
depicts a unitary structure, the mere depiction of a struc-
tural claim feature as unitary in an embodiment, without
more, does not mandate that the structural limitation be
unitary.”) (internal citation omitted). The applicability of
this default rule is confirmed by the language of the claim,
which describes the “movable barrier operator” as “com-
prise[d]” of functional components – a processor and con-
nections to other components in the broader movable
barrier system.
The only support the ALJ identified for her narrow
claim construction was an embodiment in the specification,
in which the “movable barrier operator” is, indeed, the
“head unit.” ’404 patent at 5:38 & Fig. 1. But it would be
apparent to anyone skilled in the art that this embodiment,
which is a garage door opener, is not limiting but illustra-
tive, as the patent teaches movable barrier systems that
are not even garage door systems. See Phillips v. AWH
Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (“[A]lthough the
specification often describes very specific embodiments of
the invention, we have repeatedly warned against confin-
ing the claims to those embodiments.”); ’404 patent at
12:13–17 (“[A]lthough the described embodiment included
a garage door, various types of movable barrier systems
can employ these teachings, for example, swinging gates,
rolling gates, rising gates, and the like.”). In fact, in her
original claim construction order, the ALJ correctly ob-
served that this very same embodiment was exemplary.
See J.A. 26.
Therefore, we conclude, as the ALJ did originally, that
the correct construction of “movable barrier operator” as
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CHAMBERLAIN GROUP, INC. v. ITC 15
used in the ’404 patent is its plain and ordinary meaning,
which is not limited to a single, discrete physical assembly
or housing, and is not limited to just a head unit. On re-
mand, the Commission will need to apply the correct claim
construction to determine whether the ’404 Accused Prod-
ucts contain a “movable barrier operator.”
The ALJ’s incorrect construction of “movable barrier
operator” affected her entire infringement analysis, with
respect to both the ’404 Original Products and the ’404 Al-
ternative Products. 2 Because the Commission adopted the
ALJ’s findings and conclusions, its analysis is likewise in-
fected by the erroneous claim construction. On remand,
therefore, the Commission will need to revisit the entirety
of its evaluation of the ’404 infringement issue.
We reach this conclusion as to the proper scope of the
remand for several reasons. First, the ALJ’s incorrect con-
struction of “movable barrier operator” led her to reject
Chamberlain’s contention that the Wi-Fi receiver located
in the wall station of the ’404 Accused Products constitutes
a “wireless communication system connection” meeting el-
ement [b]. See J.A. 83 (ALJ acknowledging “[t]here is . . .
no dispute that the 404 Accused Products (with the excep-
tion of the Mighty Mule MM9333H and MM9333HA) have
wireless communication system connections in their wall
stations in the form of Wi-Fi receivers” but nonetheless
2 Both Chamberlain and Nortek argue, as alterna-
tives to their preferred dispositions (reversal and affir-
mance, respectively), that the case should be remanded for
further proceedings with respect to whether the ’404 Ac-
cused Products infringe. We agree this is the appropriate
outcome here. See generally Beloit Corp. v. Valmet Oy, 742
F.2d 1421, 1423 (Fed. Cir. 1984) (noting we do not “sit to
review what the Commission has not decided”).
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16 CHAMBERLAIN GROUP, INC. v. ITC
finding these connections cannot satisfy element [b] since
they are not in head units). 3
Second, the ALJ relied on her incorrect construction to
reject Chamberlain’s argument that “a button on a wall
station in isolation qualifies as the claimed ‘local wired con-
nection.’” J.A. 87. The ALJ’s reasoning makes clear it was
based on the narrow construction of “movable barrier oper-
ator” we have now rejected. See id. (“While such a button
connects to the ‘movable barrier operator’ (i.e., head unit)
via a set of wires running from the wall station, the button
itself is not a ‘local wired connection’ that resides, at least
in part, in a ‘movable barrier operator’ (i.e., head unit) of a
404 Accused Product, as required by claim 11[b].”).
Third, the ALJ’s determination that the “button” ver-
sion of Chamberlain’s local wired connection theory of in-
fringement was forfeited was also tainted by the ALJ’s
erroneous claim construction. In its pre-hearing brief,
Chamberlain identified the “local wired connection” in the
’404 Accused Products as the “communication connections
with a wall station.” J.A. 10619. In its post-hearing brief,
Chamberlain instead identified only “a button on the wall
station” as the accused “local wired connection.” J.A.
13840-41. The ALJ’s conclusion that these were materially
distinct theories of infringement – and hence Chamberlain
had abandoned its original theory and was trying to replace
it, in an untimely manner, with a new post-hearing theory
– was intertwined with her incorrect claim construction,
which mandated that the movable barrier operator be
3 With the revival of Chamberlain’s Wi-Fi theory of
infringement, the Commission will need to reevaluate if
the LDCO850 and LDCO850A are representative of the
Mighty Mule MM9333H and MM9333HA products. See
J.A. 111-16.
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CHAMBERLAIN GROUP, INC. v. ITC 17
located solely in the head unit, and not (even in part) in the
wall station. 4
4 This relationship is evident, we believe, from the
ALJ’s handling of disputes relating to the opinions of
Chamberlain’s expert, Dr. Subramanian. After the merits
hearing, but before the issuance of the Initial Determina-
tion, Nortek moved to strike the purportedly new infringe-
ment theory Dr. Subramanian had advocated at the
hearing, where he had opined that the “movable barrier op-
erator” included components spread across both the head
unit and the wall station. The ALJ denied the motion,
firmly stating that her claim construction order had al-
ready “explicitly rejected Nortek’s own attempted construc-
tion of a ‘movable barrier operator’ as confined to a head
unit,” adding “[i]t is difficult to understand why Nortek
made such an obviously unsupported Motion to strike tes-
timony when the motion is clearly wrong in its assertions.”
J.A. 14269-70. The motion lacked merit because, at that
point in the proceedings, the ALJ’s operative construction
expressly did not require that the movable barrier operator
had to be located in the head unit. See J.A. 26. Later, how-
ever, in the Initial Determination, the ALJ changed her
construction to require the movable barrier operator to be
in the head unit, and then held: “Dr. Subramanian’s refer-
ence to a wall station ‘button’ as a ‘local wired connection’
in the context of element[b] of claim 11 was based on a
clearly erroneous interpretation of the Markman Order’s
guidance on ‘movable barrier operator,’ as discussed
above.” J.A. 85. Had the ALJ adhered to her earlier, cor-
rect “plain and ordinary” meaning construction of movable
barrier operator, she may have rejected the contention that
the “button” theory was new and untimely, just as she had
previously rejected Nortek’s closely-related motion to
strike.
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18 CHAMBERLAIN GROUP, INC. v. ITC
Accordingly, we vacate and remand the portion of the
Commission’s Final Determination of April 22, 2020 find-
ing that the ’404 Accused Products do not infringe. On re-
mand, the Commission must evaluate infringement based
on the proper construction of “movable barrier operator.”
C
Nortek appeals the Commission’s conclusion that the
obstacle detector described in the ’223 patent may “oper-
ate” even when it is turned off and unable to perform any
function. In particular, Nortek faults the Commission for
applying a new, incorrect claim construction of “operates.”
We disagree. Instead, we hold that the Commission cor-
rectly construed “operates” according to its plain and ordi-
nary meaning and, accordingly, made no error in
concluding that the asserted claims of the ’223 patent do
not require any obstacle-detection functionality in the low-
energy operating mode.
The ’223 patent teaches that an obstacle detector may
not be functional in all operational modes. See ’223 patent
at 10:13-16 (“[A] photobeam-based obstacle detector . . . can
be configured to permit reduction of the energization cycle
and/or complete powering down to accomplish a reduced en-
ergy consumption mode of operation.”) (emphasis added).
We have been provided no persuasive reason why a person
of ordinary skill would read the ’223 patent claims to ex-
clude this embodiment. To the contrary, the intrinsic evi-
dence is entirely consistent with the Commission’s
construction of “operates” – which is the same plain and
ordinary meaning construction the ALJ had initially
adopted in her claim construction order – “which does not
require that the obstacle detector continue to function or
detect objects in its lower-energy state.” J.A. 360. We find
no error in the Commission’s conclusion that the ALJ’s In-
itial Determination of non-infringement had to be reversed
“because it misapplies the plain meaning of ‘operates’ in
the context of the ’223 patent.” Id.Case: 20-1965 Document: 85 Page: 19 Filed: 04/27/2023
CHAMBERLAIN GROUP, INC. v. ITC 19
Nortek further argues that the Commission violated
the Administrative Procedure Act (“APA”) because it did
not provide Nortek adequate notice of, and a chance to re-
spond to, the Commission’s construction of “operates.” See
5 U.S.C. §§ 554(b)(3), (c), 556(d). Parties to a Commission
proceeding, just like parties to an inter partes review before
the Patent Trial and Appeal Board, are entitled to notice
and an opportunity to respond before the agency adopts a
construction of a term that differs from a construction to
which the parties had agreed. See Qualcomm Inc. v. Intel
Corp., 6 F.4th 1256, 1262-63 (Fed. Cir. 2021).
Here, the Commission complied with the APA. The
parties themselves put the meaning of “operates” into dis-
pute. Chamberlain, in its petition requesting Commission
review, wrote that “[t]he ALJ’s finding that the ’223 Ac-
cused Products do not infringe claims 1 and 21 of the ’223
patent is based on a single legal error: an erroneous[ly] ap-
plied construction of the term ‘operates.’” J.A. 15123.
Nortek responded by arguing that “Chamberlain’s pro-
posed construction of ‘operates’ as ‘is energized’ is overly
broad and is inconsistent with the specification and the
claims.” J.A. 15344. “Operates” was not presented to the
Commission as an agreed-upon term but, instead, as one
whose proper construction was disputed. Both parties had
notice of the legal proposition that an agency “may adopt a
claim construction of a disputed term that neither party
proposes without running afoul of the APA.” Qualcomm, 6
F.4th at 1262. Both parties’ views on the proper construc-
tion were heard. Accordingly, there was no APA violation.
Other than the Commission’s construction of “oper-
ates,” Nortek does not otherwise challenge the Commis-
sion’s infringement evaluation. Because we agree with the
Commission’s claim construction, we affirm the Commis-
sion’s conclusion that “the obstacle detector in each ’223 Ac-
cused Product ‘operates’ in both energy modes” as required
by the asserted claims of the ’223 patent. J.A. 360. The
Case: 20-1965 Document: 85 Page: 20 Filed: 04/27/2023
20 CHAMBERLAIN GROUP, INC. v. ITC
Commission’s determination that the ’223 Accused Prod-
ucts infringe is affirmed.
IV
We have considered both parties’ remaining arguments
and find them unpersuasive. Thus, for the foregoing rea-
sons, we affirm in part and vacate in part the Commission’s
Final Determinations and remand for further proceedings
consistent with this opinion.
AFFIRMED-IN-PART, VACATED-IN-PART, AND
REMANDED
COSTS
Costs assessed against Nortek.