Filed: Apr. 08, 2020
Latest Update: Apr. 08, 2020
Summary: Case: 19-1361 Document: 64 Page: 1 Filed: 04/08/2020 United States Court of Appeals for the Federal Circuit _ TECHNICAL CONSUMER PRODUCTS, INC., NICOR, INC., AMAX LIGHTING, Appellants v. LIGHTING SCIENCE GROUP CORPORATION, Appellee _ 2019-1361 _ Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in Nos. IPR2017- 01287, IPR2018-00263, IPR2018-00269. _ Decided: April 8, 2020 _ STACIE RACHEL HARTMAN, Steptoe & Johnson LLP, Chicago, IL, argued for appellants. Al
Summary: Case: 19-1361 Document: 64 Page: 1 Filed: 04/08/2020 United States Court of Appeals for the Federal Circuit _ TECHNICAL CONSUMER PRODUCTS, INC., NICOR, INC., AMAX LIGHTING, Appellants v. LIGHTING SCIENCE GROUP CORPORATION, Appellee _ 2019-1361 _ Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in Nos. IPR2017- 01287, IPR2018-00263, IPR2018-00269. _ Decided: April 8, 2020 _ STACIE RACHEL HARTMAN, Steptoe & Johnson LLP, Chicago, IL, argued for appellants. Als..
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Case: 19-1361 Document: 64 Page: 1 Filed: 04/08/2020
United States Court of Appeals
for the Federal Circuit
______________________
TECHNICAL CONSUMER PRODUCTS, INC.,
NICOR, INC., AMAX LIGHTING,
Appellants
v.
LIGHTING SCIENCE GROUP CORPORATION,
Appellee
______________________
2019-1361
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. IPR2017-
01287, IPR2018-00263, IPR2018-00269.
______________________
Decided: April 8, 2020
______________________
STACIE RACHEL HARTMAN, Steptoe & Johnson LLP,
Chicago, IL, argued for appellants. Also represented by
JOHN LLOYD ABRAMIC, KATHERINE H. JOHNSON.
KAYVAN B. NOROOZI, Noroozi PC, Los Angeles, CA, ar-
gued for appellee.
______________________
Before DYK, CHEN, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
Case: 19-1361 Document: 64 Page: 2 Filed: 04/08/2020
2 TECH. CONSUMER PRODS. v. LIGHTING SCI. GRP. CORP.
Technical Consumer Products, Inc., Nicor, Inc., and
Amax Lighting (collectively, “TCP”) petitioned for inter
partes review of several claims of U.S. Patent
No. 8,201,968. The Patent Trial and Appeal Board deter-
mined that TCP did not demonstrate by a preponderance
of the evidence that claims 1–4, 6, 14, and 15 of the ’968 pa-
tent were anticipated by U.S. Patent No. 7,670,021
(“Chou”) or that claims 3, 4, 7, 8, 11, 12, 16, 17, and 19–23
would have been obvious over Chou alone or in view of
other prior art references. The Board based its determina-
tions exclusively on its finding that Chou does not disclose
a single limitation (hereinafter, the “H/D limitation”) in
claims 1 and 20 of the ’968 patent, the only independent
claims at issue.
The Board’s conclusions regarding the H/D limitation
resulted from an erroneous interpretation of the claim lan-
guage and a misunderstanding of our case law. The Board
did not address any of the parties’ other arguments regard-
ing the other limitations of claim 1 or of the rest of the chal-
lenged claims. Because claims 1, 11, 14, 15, 17, and 19–23
of the ’968 patent were found to be unpatentable on other
grounds not at issue on appeal, we vacate the Board’s deci-
sion of no anticipation or obviousness solely as to claims 2–
4, 6–8, 12, and 16 and remand for consideration of the par-
ties’ remaining arguments pertaining to those claims.
BACKGROUND
I
The ’968 patent is directed to replacement light emit-
ting diode (LED) light fixtures. The specification explains
that the advent of LED lighting, and the advantages it of-
fered over conventional lighting, created a demand for re-
placement LED light fixtures that could be used to replace
existing light installations. Because different types of light
installations used different kinds of housing, manufactur-
ers of prior art replacement LED light fixtures would cre-
ate unique designs for each type of installation to
Case: 19-1361 Document: 64 Page: 3 Filed: 04/08/2020
TECH. CONSUMER PRODS. v. LIGHTING SCI. GRP. CORP. 3
accommodate the dimensional requirements of the light
fixtures being replaced. The ’968 patent seeks to minimize
the need for such customization by creating “low profile
downlighting for retrofit applications” that accommodates
a variety of housing shapes and sizes. ’968 patent col. 1
ll. 13–14.
Claim 1 of the ’968 patent illustrates the various fea-
tures of the claimed light fixture design:
1. A luminaire, comprising:
a heat spreader and a heat sink thermally coupled
to the heat spreader, the heat sink being substan-
tially ring-shaped and being disposed around and
coupled to an outer periphery of the heat spreader;
an outer optic securely retained relative to at least
one of the heat spreader and the heat sink; and
a light source disposed in thermal communication
with the heat spreader, the light source comprising
a plurality of light emitting diodes (LEDs) that are
disposed on the heat spreader such that the heat
spreader dissipates heat from the LEDs;
wherein the heat spreader, the heat sink and the
outer optic, in combination, have an overall height
H and an overall outside dimension D such that the
ratio of H/D is equal to or less than 0.25;
wherein the combination defined by the heat
spreader, the heat sink and the outer optic, is so
dimensioned as to: cover an opening defined by a
nominally sized four-inch can light fixture; and,
cover an opening defined by a nominally sized four-
inch electrical junction box.
Id. at col. 10 ll. 20–40 (emphasis added to the disputed H/D
limitation).
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4 TECH. CONSUMER PRODS. v. LIGHTING SCI. GRP. CORP.
Figures 5 and 12 of the ’968 patent show a top view and
cross-sectional view, respectively, of an embodiment of the
claimed luminaire 100, including LED 120, heat spreader
105, heat sink 110, and outer optic 115:
Id. Fig 5; see also
id. at col. 2 ll. 50–52.
Id. Fig. 12 (annotated by the Board); see also
id. at col. 3
ll. 1–2; J.A. 6.
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TECH. CONSUMER PRODS. v. LIGHTING SCI. GRP. CORP. 5
In this embodiment, the heat sink 110 is annularly cou-
pled to the heat spreader 105, which is covered by the outer
optic 115. See id. at col. 3 l. 61–col. 4 l. 5. The specification
describes that in the preferred embodiments, “the combi-
nation of the heat spreader 105, heat sink 110 and outer
optic 115, have an overall height H and an overall outside
dimension D such that the ratio of H/D is equal to or less
than 0.25” in order to “provide for a low profile lumi-
naire 100.”
Id. at col. 4 ll. 1–5. Figures 4 and 28 depict the
H and D dimensions, which in these embodiments consti-
tute the height from the base of the heat sink/spreader to
the top of the outer optic (H) and the diameter of the circu-
lar base (D):
Id. Fig. 4.
Id. Fig. 28; see also
id. at col. 7 ll. 47–51.
Case: 19-1361 Document: 64 Page: 6 Filed: 04/08/2020
6 TECH. CONSUMER PRODS. v. LIGHTING SCI. GRP. CORP.
II
Like the ’968 patent, Chou describes the advantages of
the “[s]uccessful retrofit of an LED lamp to . . . existing and
new recessed can housings.” Chou col. 2 ll. 9–13. Chou’s
specification explains that prior art LED devices had prob-
lems with heat dissipation when installed into recessed can
housings. Id. at col. 1 ll. 37–52. Chou purportedly solves
this problem by creating “a recessed light fixture having a
thermally effective trim” that aids in the dissipation of heat
from the light source.
Id. at col. 1 ll. 17–18.
The trim of Chou’s light fixture “has thermally conduc-
tive properties and includes a flange around a perimeter of
the trim.” Id. at col. 2 ll. 54–55. The light fixture also in-
cludes “a heatsink mounted to a back surface of the trim,”
id. at col. 2 ll. 57–58, that is inserted “into the recessed can
housing,”
id. at col. 2 l. 31. The trim 12, flange 22, and heat
sink 14 are depicted in Figures 4a and 2a:
Id. Fig. 4a (annotated by TCP); see also
id. at col. 7 l. 48–
col. 8. l. 3; Appellant’s Br. 18.
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TECH. CONSUMER PRODS. v. LIGHTING SCI. GRP. CORP. 7
Id. Fig. 2a; see also
id. at col. 3 l. 42–col. 4 l. 39.
In the embodiment depicted in Figures 2a and 4a, “heat
is transferred directly into trim 12 from the light source.”
Id. at col. 5 ll. 2–3. “As the temperature of trim 12 in-
creases, heat is vented from the flange portion of trim 12
that resides outside the recessed can housing.”
Id. at col. 5
ll. 3–5. While “a portion of the heat residing in trim 12 is
transmitted into heatsink 14” and “vented into the re-
cessed housing,” the “majority of heat is dissipated from
trim 12 outside the housing.”
Id. at col. 5 ll. 6–10. Indeed,
Chou discloses that approximately 65% of the heat gener-
ated by the LED light source is dissipated through the trim
and flange,
id. at col. 7 ll. 1–3, while 35% of the heat is dis-
sipated by heat sink 14,
id. at col. 7 ll. 11–13.
III
During prosecution, the examiner initially rejected
claim 1 of the ’968 patent as anticipated by Chou. J.A. 669.
The examiner identified Chou’s “heat sink 14” as disclosing
the claimed heat sink, and “trim 12” as disclosing the
claimed heat spreader. Id. In response, the applicant
amended the claim to clarify that the heat sink must be
“substantially ring-shaped” and “disposed around and cou-
pled to an outer periphery of the heat spreader.” J.A. 673.
Case: 19-1361 Document: 64 Page: 8 Filed: 04/08/2020
8 TECH. CONSUMER PRODS. v. LIGHTING SCI. GRP. CORP.
The applicant argued that Chou’s heat sink 14 was neither
ring-shaped nor coupled to the outer periphery of the heat
spreader, and therefore did not anticipate claim 1.
J.A. 679. The applicant also argued that the combination
of these elements did not disclose the H/D limitation; that
is, that the “ratio of the combined height of [Chou’s] heat
sink 14 and the trim 12[,] and of the overall outside dimen-
sion of the assembly 10,” was not less than 0.25.
Id. The
examiner allowed the amended claim without addressing
whether Chou’s outer flange 22 satisfied the claimed heat
sink limitations.
IV
In its petition for IPR, TCP argued that Chou in fact
anticipates the allowed claim 1 of the ’968 patent. In par-
ticular, TCP argued that Chou’s outer flange 22, rather
than heat sink 14, disclosed the claimed heat sink. TCP
explained that Chou’s outer flange 22 was configured in a
ring shape around trim 12. Regarding the H/D limitation,
TCP asserted that the height-to-diameter ratio of the com-
bination of trim 12, flange 22, and outer optic 23 was less
than 0.25. TCP did not rely on heat sink 14 for the disclo-
sure of any of the limitations of claim 1.
Responding to TCP, patent owner Lighting Science
Group Corp. (“LSG”) argued that both heat sink 14 and
trim 12 must be included in the H/D calculation, and that
when heat sink 14 is included, the height-to-diameter ratio
is not less than 0.25. According to LSG, Chou’s “heat sink”
necessarily includes “heat sink 14” in addition to its other
heat sinking elements. To support its argument, LSG pre-
sented expert evidence that Chou would not dissipate heat
sufficiently enough to function were heat sink 14 removed.
The Board agreed with LSG, finding that “the arrange-
ment of heat sinking elements disclosed in Chou includes
both trim 12 and heatsink 14.” Tech. Consumer Prods.,
Inc. v. Lighting Sci. Grp. Corp., No. IPR2017-01287,
2018 WL 5733733, at *6 (P.T.A.B. Oct. 31, 2018) (Decision).
Case: 19-1361 Document: 64 Page: 9 Filed: 04/08/2020
TECH. CONSUMER PRODS. v. LIGHTING SCI. GRP. CORP. 9
Citing In re Chudik,
851 F.3d 1365 (Fed. Cir. 2017), the
Board found that the only way to meet the claim require-
ments was to remove an essential element of Chou—heat
sink 14—and thus Chou could not anticipate the claim.
Id.
at *7. The Board also found that the prosecution history
supported its determination, as the claim was allowed over
Chou after amendment of the heat sink limitation.
Id. Be-
cause Chou does not disclose the H/D limitation if heat
sink 14 is included in the calculation of the height-to-diam-
eter ratio, the Board found that Chou does not anticipate
claim 1.
Id.
The Board did not address any of the parties’ other ar-
guments, determining that this finding alone was suffi-
cient to resolve all of TCP’s anticipation and obviousness
grounds based on Chou as a primary reference. 1 TCP ap-
peals. We have jurisdiction under 28 U.S.C.
§ 1295(a)(4)(A).
DISCUSSION
Whether a prior art reference discloses a particular
claim limitation presents a question of fact that we review
for substantial evidence. See Wasica Fin. GmbH v. Conti-
nental Auto. Sys., Inc., 853 F.3d 1272, 1278 (Fed. Cir.
2017); Mettler-Toledo, Inc. v. B-Tek Scales, LLC,
671 F.3d
1291, 1297 (Fed. Cir. 2012); Golden Bridge Tech., Inc.
v. Nokia, Inc.,
527 F.3d 1318, 1323 (Fed. Cir. 2008). We
review claim construction incident to the issues of antici-
pation and obviousness and relying on intrinsic evidence
de novo.
Wasica, 853 F.3d at 1278.
The sole question presented on appeal is whether the
Board erred in determining that Chou’s heat sink 14 must
be included in the calculation of the height-to-diameter
1 The Board held that claims 1, 11, 14, 15, 17, and
19–23 were unpatentable on other grounds. LSG did not
appeal the unpatentability of these claims.
Case: 19-1361 Document: 64 Page: 10 Filed: 04/08/2020
10 TECH. CONSUMER PRODS. v. LIGHTING SCI. GRP. CORP.
ratio recited in claim 1 of the ’968 patent. Because the
Board’s findings of fact are divorced from the plain lan-
guage of the claim, and are further premised on an incor-
rect interpretation of our case law, we hold that they are
not supported by substantial evidence.
The H/D limitation requires that “the heat spreader,
the heat sink and the outer optic, in combination, have an
overall height H and an overall outside dimension D such
that the ratio of H/D is equal to or less than 0.25.” ’968 pa-
tent col. 10 ll. 32–35. The antecedent basis for “the heat
sink” in the H/D limitation is found earlier in the claims
and requires “a heat sink thermally coupled to the heat
spreader, the heat sink being substantially ring-shaped
and being disposed around and coupled to an outer periph-
ery of the heat spreader.” Id. at col. 10 ll. 21–24. No other
heat sink is specified in the claim. Consequently, “the heat
sink” that is used in the calculation of the height-to-diam-
eter ratio is the same heat sink that is annularly coupled
to the heat spreader.
TCP argued to the Board that Chou’s outer flange 22
corresponds to the “heat sink” described in the ’968 patent
claims. In response, LSG did not dispute that outer
flange 22 is a “heat sink,” or that it is configured in a ring-
shape around the heat spreader trim 12. Rather, LSG ar-
gued that both of Chou’s heat sinks, i.e., outer flange 22
and heat sink 14, must be included in the calculation of the
H/D limitation’s height-to-diameter ratio. The Board
agreed.
This argument, however, contradicts the plain lan-
guage of claim 1. The claim only requires that a specific
heat sink—the one annularly coupled to the heat
spreader—be included in the H/D ratio calculation. The
claim does not suggest that all heat sinks in the luminaire
must be included in this calculation, nor does it suggest
that there must be only one heat sink. Indeed, the “com-
prising” language in the preamble suggests that there may
Case: 19-1361 Document: 64 Page: 11 Filed: 04/08/2020
TECH. CONSUMER PRODS. v. LIGHTING SCI. GRP. CORP. 11
be additional, unclaimed elements in the device, including
additional heat sinks. See Crystal Semiconductor Corp.
v. TriTech Microelecs. Int’l, Inc., 246 F.3d 1336, 1348
(Fed. Cir. 2001) (explaining that the word “comprising” in
a claim “creates a presumption that the recited elements
are only a part of the device, that the claim does not exclude
additional, unrecited elements” (citing KCJ Corp. v. Kinetic
Concepts, Inc.,
223 F.3d 1351, 1356 (Fed. Cir. 2000))). And
the figures and specification make clear that outer
flange 22 and heat sink 14 are separate components of the
light fixture that dissipate heat in different directions. See
Chou col. 5 ll. 3–10 (describing how the majority of heat is
vented through the flange outside the can housing, while a
portion of the heat is dissipated via heat sink 14 into the
can housing).
Reading the H/D limitation to include heat sink 14 is
also inconsistent with the ’968 patent specification. The
specification describes the H/D limitation as “provid[ing]
for a low profile [of the] luminaire.” ’968 patent col. 4 ll. 1–
5. The embodiments disclosed in the ’968 patent only in-
clude in the H/D calculation all of the elements of the lumi-
naire that are external to the can housing, and exclude any
element that is affixed inside the can housing, such as the
wire connections or power conditioner 165. See id. Figs. 4,
28, 30; see also
id. at col. 5 ll. 9–15. Neither the claims nor
the specification of the ’968 patent describe any particular
dimensional requirements for components that are to be
fixed within the housing. This makes intuitive sense, as it
is unclear how the sizing of those elements would contrib-
ute to, or detract from, the “low profile” of the luminaire.
That Chou’s heat sink 14 is inserted “into the recessed can
housing” to install the fixture, Chou col. 2 l. 31, and Chou’s
outer flange 22 is external to the can housing, suggests
that Chou’s outer flange 22 is the “heat sink” that claim 1
contemplates having low profile dimensions.
Contrary to the Board’s decision, the prosecution his-
tory does not support a determination that heat sink 14
Case: 19-1361 Document: 64 Page: 12 Filed: 04/08/2020
12 TECH. CONSUMER PRODS. v. LIGHTING SCI. GRP. CORP.
must be included in the calculation of the H/D limitation.
In fact, the prosecution history makes it clear that heat
sink 14 is not the heat sink recited by claim 1, as it is not
configured in a ring shape around and coupled to trim 12.
See J.A. 679. Importantly, the examiner never addressed
whether the outer flange 22 could itself be the anticipatory
“heat sink.”
LSG argues that the Board specifically found that
“heatsink 14 and trim 12 (including outer flange 22) are
part of a singular heat sink in Chou, which cannot be sep-
arated without rendering Chou inoperable.” Appellee’s
Br. 15. According to LSG, this finding is supported by sub-
stantial evidence, including Chou’s disclosure that heat
sink 14 and outer flange 22 work together to dissipate heat
from trim 12, as well as expert evidence that Chou could
not function using only trim 12 and outer flange 22. Citing
In re Morsa, 713 F.3d 104, 110 (Fed. Cir. 2013), LSG argues
that “Chou would not be enabled based on the heat dissi-
pation capabilities of outer flange 22 alone” because it
would not function without the additional heat dissipation
provided by heat sink 14. Appellee’s Br. 20.
It is well established in our case law that a prior art
reference must be enabling in order to anticipate a claim.
See, e.g., Impax Labs., Inc. v. Aventis Pharms. Inc.,
468 F.3d 1366, 1381 (Fed. Cir. 2006) (“[A] prior art refer-
ence must be enabling so that the claimed subject matter
may be made or used by one skilled in the art.” (citations
omitted)); Bristol–Myers Squibb Co. v. Ben Venue Labs.,
Inc.,
246 F.3d 1368, 1374 (Fed. Cir. 2001) (“To anticipate,
the reference must also enable one of skill in the art to
make and use the claimed invention.” (citing In re
Donohue,
766 F.2d 531, 533 (Fed. Cir. 1985))). In Morsa,
we made clear that “an examiner must determine if prior
art is enabling by asking whether a person of ordinary skill
in the art could make or use the claimed invention without
undue experimentation based on the disclosure of that par-
ticular
document.” 713 F.3d at 110 (emphasis in original).
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TECH. CONSUMER PRODS. v. LIGHTING SCI. GRP. CORP. 13
In so stating, we rejected the idea that an examiner can
assess enablement by comparing the disclosures of a prior
art reference to the disclosures of the patent application it
purportedly anticipates.
Id. In other words, what matters
for enablement is that the allegedly anticipatory invention
disclosed by a prior art reference is enabled by that prior
art reference. Whether that invention is in fact anticipa-
tory is a separate question.
Here, the invention disclosed in and enabled by Chou
clearly includes heat sink 14. TCP does not argue other-
wise. Instead, TCP argues that the relevant heat sink for
anticipation and obviousness is outer flange 22. TCP’s in-
validity theory does not require that heat sink 14 be re-
moved from Chou’s light fixture. It simply requires
considering only the specific heat sink required by
claim 1—the one annularly coupled to the heat spreader—
when assessing whether the H/D limitation is satisfied.
Even accepting all of LSG’s evidence regarding the opera-
tion of Chou as true, this does not change the fact that
claim 1 incorporates only one particular heat sink in its cal-
culation of the claimed height-to-dimension ratio. This is
a matter of claim construction, not enablement.
LSG vociferously argues that the Board found that
there is only one heat sink in Chou, of which both outer
flange 22 and heat sink 14 are a part. The Board’s decision
is not so clear on this point, however. The Board described
that the “arrangement of heat sinking elements disclosed
in Chou includes both trim 12 and heatsink 14,” Decision,
2018 WL 5733733, at *6, and determined based on this
finding that Chou cannot anticipate the H/D limitation
without “tearing the invention apart,”
id. at *7 (quoting
Chudik, 851 F.3d at 1374). The Board relied primarily on
Chudik in reaching this conclusion. Like Morsa, however,
Chudik does not support the Board’s conclusion.
In Chudik, the patent claim at issue related to a medi-
cal device used in shoulder replacement surgery. Id.
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14 TECH. CONSUMER PRODS. v. LIGHTING SCI. GRP. CORP.
at 1367. The claim required that a “protruding surface” of
the device be “arranged to engage the surface” of a partic-
ular cavity.
Id. at 1368. The “protruding surface” in the
purportedly anticipatory prior art reference was incapable
of engaging the surface of the cavity because an anchoring
element of the device was in the way.
Id. at 1373–74. We
held that the prior art reference did not anticipate the
claim because it could only meet the claim language if the
anchoring element was physically removed, thus distorting
the original design.
Id.
As described above, under a proper reading of claim 1,
heat sink 14 need not be physically removed from Chou for
Chou to anticipate the claim. Rather, heat sink 14 is irrel-
evant to the calculation of the height-to-dimension ratio, or
any of the other claim limitations, because it is not the
“heat sink” contemplated by claim 1 and claim 1 does not
require a single heat sinking element.
It is worth noting that the Board reached nearly the
opposite result in assessing Chou’s disclosure of a nearly
identical claim limitation in a related patent. See Tech.
Consumer Prods. Inc. v. Lighting Sci. Grp. Corp.,
No. IPR2017-01280, 2018 WL 5733727 (P.T.A.B. Oct. 31,
2018) (TCP II). When considering whether Chou disclosed
a heat spreader, heat sink, and outer optic that “have an
overall height H such that the ratio of H/D is equal to or
less than 0.25,” the Board in TCP II found that Chou’s
flange portion 22 and trim 12 mapped to the heat sink and
heat spreader elements of the claim.
Id. at *10. In doing
so, the Board rejected LSG’s identical argument regarding
heat sink 14, finding that “Chou’s flange 22 of trim 12
teaches a discrete ‘heat sink’ commensurate with claim 1”
and that heat sink 14 was merely an additional, unrecited
element.
Id. It is difficult to reconcile these seemingly in-
consistent findings, and we agree with the Board’s analysis
in TCP II.
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TECH. CONSUMER PRODS. v. LIGHTING SCI. GRP. CORP. 15
CONCLUSION
The Board’s determination that Chou does not disclose
the H/D limitation in claim 1 of the ’968 patent is not sup-
ported by substantial evidence. For the reasons described
above, we vacate the Board’s decision of no anticipation or
obviousness of claims 2–4, 6–8, 12, and 16 of the ’968 patent
and remand for consideration of the parties’ remaining ar-
guments.
VACATED AND REMANDED
COSTS
Costs to Appellants.
