By Eric Schweibenz
On April 29, 2014, ALJ David P. Shaw issued the public version of Order Nos. 33 and 34 (both dated April 17, 2014) granting-in-part and denying, respectively, motions for summary determination of non-infringement in Certain Multiple Mode Outdoor Grills and Parts Thereof (Inv. No. 337-TA-895).

By way of background, this investigation is based on a complaint filed by A&J Manufacturing, LLC and A&J Manufacturing, Inc. (collectively, “A&J”) alleging violation of Section 337 by over 20 proposed respondents in the importation and sale of certain multiple mode outdoor grills and parts thereof that infringe one or more claims of U.S. Patent Nos. 8,381,712, D660,646 and D662,773.  See our August 22, 2013 and September 23, 2013 posts for more details on the complaint and notice of investigation, respectively.

According to Order No. 33, Respondents Char-Broil, LLC; Zhejiang Fudeer Electric Appliance Co., Ltd.; Rankam Metal Products Manufactory Limited, USA; Outdoor Leisure Products, Inc.; Dongguan Kingsun Enterprises Co., Ltd.; Tractor Supply Co.; and Chant Kitchen Equipment (HK) Ltd. (collectively, the “Respondents”) sought summary determination that they do not infringe claims 1-20 of the ‘712 patent.  The principal dispute was whether the grill covers recited in independent claims 1, 10 and 17 include both fixed and openable portions.  The Respondents and the Commission Investigative Staff (“OUII”) argued that the plain meaning of “openable cover” does not include fixed portions of the grill, and that A&J explicitly disclaimed grills having exhausts attached to fixed portions during prosecution of the ‘712 patent.  A&J countered that the purported disclaimer in the file history arose out of prosecution argument rather than a claim amendment, which implicates “a wholly different standard.”  ALJ Shaw rejected A&J’s argument and agreed with Respondents and the OUII that the “openable cover” limitations mean a cover that excludes any portion of the grill enclosure that is not openable (i.e., fixed).  Based on this construction, the ALJ determined that with one exception, none of the accused products infringe the asserted claims of the ‘712 patent because they provide exhausts only on the fixed portions of the grill.  The exception, the Char-Broil Model 463724512 combination charcoal/gas grill, contains a vent located at the back edge of an openable cover of the gas cooking unit, as well as a butterfly vent located on the openable cover of the charcoal grill.  ALJ Shaw found that a genuine issue of fact remained as to whether these vents satisfy the “openable cover” limitations of the asserted claims.  Accordingly, Respondents’ motion for summary determination of non-infringement was granted-in-part.

According to Order No. 34, Respondents also sought summary determination of non-infringement of the asserted claims of the ‘712 patent on the ground that the accused products do not meet the required “exhaust” and “exhaust means” limitations.  Respondents argued that the terms “exhaust” and “exhaust means” should be construed as “a pipe, duct or similar structure that is attached to and extends from an openable cover, through which exhaust gases are expelled,” whereas A&J and the OUII contended that those terms should be interpreted as “encompassing any opening in grills through which gases may pass.”  Respondents first pointed to the specification’s disclosure of only chimneys in support of their proposed construction; however, ALJ Shaw found that the ‘721 patent does not identify its disclosed exhaust configuration as an extremely important aspect of the invention, and does not denigrate alternative exhaust configurations.  Next, Respondents argued that “exhaust” and “exhaust means” should be limited to the structures described in the specification based on prosecution disclaimer.  The ALJ, however, determined that Respondents failed to identify any statements or amendments made during prosecution giving rise to a clear and unmistakable disavowal of claim scope.  In particular, and contrary to Respondents’ assertions, ALJ Shaw found that statements distinguishing prior art references on the basis that they do not teach or suggest smokestacks on the covers of cooking units did not equate the smokestacks to the claimed exhausts, but instead were arguments that the exhausts in the prior art (which happened to be smokestacks) did not have configurations based on the type of cooking fuel used, as the pending claims required.  As genuine issues of fact existed as to whether the accused grills include exhausts that satisfy the limitations of the asserted claims, ALJ Shaw denied the motion.