Homeland Housewares, LLCv.Whirlpool Corporation

Patent Trial and Appeal Board

Oct 21, 2015

11684901 (P.T.A.B. Oct. 21, 2015)

Trials@uspto.gov Paper 18
571-272-7822 Entered: October 21, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

HOMELAND HOUSEWARES, LLC,
Petitioner,

v.

WHIRLPOOL CORPORATION,
Patent Owner.
____________

Case IPR2014-00877
Patent 7,581,688 B2
____________

Before PHILLIP J. KAUFFMAN, WILLIAM V. SAINDON, and
PATRICK M. BOUCHER, Administrative Patent Judges.

BOUCHER, Administrative Patent Judge.

FINAL WRITTEN DECISION
35 U.S.C. § 318(a) and 37 C.F.R. § 42.73

IPR2014-00877
Patent 7,581,688 B2

2
I. INTRODUCTION
A. Background
Homeland Housewares, LLC (“Petitioner”) filed a corrected Petition
(Paper 5, “Pet.”) pursuant to 35 U.S.C. §§ 311–19 to institute an inter partes
review of claims 1–16 of U.S. Patent No. 7,581,688 B2 (“the ’688 patent”).
The Board instituted trial on October 30, 2014. Paper 10 (“Dec.”).
During the trial, Patent Owner timely filed a Patent Owner Response
(Paper 13, “PO Resp.”), and Petitioner timely filed a Reply to the Patent
Owner Response (Paper 14, “Reply”). An oral hearing was held on June 9,
2015. Paper 17 (“Tr.”).
We have jurisdiction under 35 U.S.C. § 6(c). This Decision is a Final
Written Decision under 35 U.S.C. § 318(a) as to the patentability of the
claims on which we instituted trial. Based on the record before us, Petitioner
has not demonstrated, by a preponderance of the evidence, that any claim of
the ’688 patent is unpatentable.

B. Related Proceedings
Both parties assert that they are not aware of any related action or
proceeding concerning the ’688 patent. Pet. 1; Paper 9, 21.

C. The ’688 Patent (Ex. 3001)
The ’688 patent “relates generally to household blenders, and more
particularly to a household blender having a crushed ice functionality.”

1 The pages of this paper are not numbered and we count the cover page as
page 1.
IPR2014-00877
Patent 7,581,688 B2

3
Ex. 3001, col. 1, ll. 7–9. A blender is described as including a container that
defines a chamber adapted to hold a food item and a motor-driven rotating
cutter assembly mounted in an aperture in a bottom wall of the container.
Id. at col. 3, ll. 3–11. Blender contents are assumed to include a liquid
fraction and solid particles. Id. at col. 3, ll. 60–62. A “settled condition” is
described in which the “solid particles . . . accumulate at the bottom of the
chamber around the cutter assembly.” Id. at col. 3, ll. 63–64 (reference
numbers omitted).
Figure 6 of the ’688 patent is reproduced below.

Figure 6 is a graphical representation of motor speed for a loading
condition of food items in the container. Id. at 2:49–50. “For illustrative
purposes,” 6000 RPM represents a predetermined “operating speed” and
1120 represents a predetermined “settling speed.” Id. at col. 4, ll. 17–21.
Ice crushing is achieved by cycling through the motor-speed profile shown
in Figure 6 until an ice-crush switch or on/off switch “is actuated to
terminate the process.” Id. at col. 5, ll. 13–17. Each cycle includes
acceleration of the motor speed to the operating speed, maintaining the
operating speed for a predetermined operating time period, and decelerating
IPR2014-00877
Patent 7,581,688 B2

4
the motor speed to the settling speed. Id. Deceleration results from
deactivation of the motor, and a maximum time for deceleration to the
settling speed may be imposed when the contents do not sufficiently impede
rotation of the cutter speed—if the motor speed continues to exceed the
settling speed at the expiration of a “predetermined deceleration time
period,” the cycle is re-initiated by acceleration of the motor speed to the
operating speed. See id., Fig. 5; col. 4, ll. 35–44.

D. Illustrative Claim
Independent claim 1 is illustrative of the claims at issue:
1. A cycle of operation for a blender comprising a motor, a
container for holding items for processing, and a cutter
assembly located within the container and operably coupled to
the motor whereby the motor effects the rotation of the cutter
assembly, the cycle comprising:
automatically controlling a rotational speed of the cutter
assembly to effect a pulsing of the speed of the cutter assembly
wherein each pulse comprises:
(A) a constant speed phase, where the operating
speed of the cutter assembly is maintained at a predetermined
operating speed,
(B) a deceleration phase, where the speed of the
cutter assembly is reduced from the operating speed to a
predetermined settling speed indicative of the items in the
container having settled around the cutter assembly, which is
less than the operating speed and greater than zero, and
(C) an acceleration phase, where the speed of the
cutter assembly is increased from the settling speed to the
operating speed.

IPR2014-00877
Patent 7,581,688 B2

5
E. Grounds of Unpatentability
Petitioner relies on the following prior-art references.
Kolar US 6,364,522 B2 Apr. 2, 2002 Ex. 1001
Wulf US 6,609,821 B2 Aug. 26, 2003 Ex. 1003

We instituted this proceeding based on the following grounds.
Reference Basis Claims Challenged
Kolar § 102(b) 1–16
Kolar § 103(a) 1–16
Wulf § 102(b) 1–16

II. ANALYSIS
A. Claim Construction
The Board interprets claims of an unexpired patent using the broadest
reasonable construction in light of the specification of the patent in which
they appear. See 37 C.F.R. § 42.100(b); In re Cuozzo Speed Techs., LLC,
793 F.3d 1268, at 1277–79 (Fed. Cir. 2015), reh’g en banc denied, 793 F.3d
1297 (Fed. Cir. 2015); Office Patent Trial Practice Guide, 77 Fed. Reg.
48,756, 48,766 (Aug. 14, 2012).

1. Claim Terms Previously Construed
In the Institution Decision, we construed claim terms as reproduced
below. Dec. 5–9.
Claim Term Construction in the Institution Decision
“cycle” a series of events, with or without repetition
“phase” encompasses any nonzero span of time
“settling speed” a speed at which the cutter assembly has
slowed enough to allow the blender contents to
be processed again
IPR2014-00877
Patent 7,581,688 B2

6
“continuously reducing” achieving reduction to a lower value without
increasing or maintaining any intermediate
value

During the trial, Patent Owner disputed our construction of “settling
speed.” PO Resp. 6–14. Neither party contests our constructions of “cycle,”
“phase,” or “continuously reducing”; we see no reason to modify the
construction of those terms based on the record developed during the trial,
and, accordingly, adopt them for this Final Written Decision.

2. “settling speed”
Patent Owner contends that “[w]hile the Board’s provisional
construction of ‘settling speed’ comports with the specification, it is
incomplete” because “it does not reflect the mechanism which allows the
blender contents to be processed again . . . .” Id. at 14. According to Patent
Owner, the independent claims themselves define “settling speed” by
reciting that “the speed of the cutter assembly is reduced from the operating
speed to a predetermined settling speed indicative of the items in the
container having settled around the cutter assembly, which is less than the
operating speed and greater than zero.” Id. at 6. Patent Owner further
contends that whether items in the container are in a “settled” condition, as
differentiated from a “suspended” condition, is determined by whether “the
larger particles are near enough to the blades of the cutter assembly that they
will be struck by the blades when it spins.” Patent Owner supports its
position with unrebutted testimony by Paul Faerber, who served as the
IPR2014-00877
Patent 7,581,688 B2

7
Director of Engineering of a blender producer from July, 2006, to June,
2013. Ex. 2001 ¶¶ 5, 36.
Our decision ultimately does not hinge on the precise contours of a
construction of “settling speed.” Thus, we do not adopt any explicit
construction of the term for this Final Written Decision.

3. “to effect a pulsing”
Patent Owner proposes that “to effect a pulsing,” which is recited in
each of the independent claims, should be construed to mean “to effect a
series of repeated pulses.” PO Resp. 14–20. Patent Owner contends that the
specification supports a distinction between “pulsing” and “pulses,” and that
it would be unreasonable to construe “pulsing” to include only one pulse.
Id. Patent Owner supports its position with uncontroverted testimony by
Mr. Faerber. Ex. 2001 ¶¶ 46–53.
Petitioner responds in its Reply that “a ‘pulsing that includes only one
pulse is still a reasonable interpretation which the Board should adopt.”
Reply 6. But Petitioner recanted that position in its argument at oral
hearing:
JUDGE BOUCHER: . . . You seem to indicate that a “pulsing”
implie[s] that there would be multiple pulses. Is that a correct
understanding of Petitioner’s position?

MR. TROJAN: That’s correct, that -- right.

Tr. 7:12–16.
We adopt Patent Owner’s proposed construction of “to effect a
pulsing” as “to effect a series of repeated pulses.”
IPR2014-00877
Patent 7,581,688 B2

8
4. “to the operating speed”
Each of the independent claims recites that, during the “acceleration
phase,” the speed of the cutter assembly is increased from the settling speed
“to the operating speed.” Patent Owner proposes that “to the operating
speed” should be construed to mean “up to, but not past, the operating
speed.” PO Resp. 20–21. Patent Owner reasons that one of ordinary skill in
the art “would not describe an acceleration, e.g., from 5000 to 7000 RPM as
an acceleration ‘to 6000 RPM.’” Id. at 21. Patent Owner supports its
position with unrebutted testimony by Mr. Faerber. Ex. 2001 ¶ 57.
Petitioner responds that “[i]t is noteworthy that the limitation . . . is at
the very end of claim 1,” contending that “what happen[s] after the blade
reaches the operating speed is not covered by the claims.” Reply 6. We are
not persuaded by this contention because the “pulsing” recited in the
independent claims requires multiple pulses, each of which has the recited
“constant speed phase,” “deceleration phase,” and “acceleration phase.” We
also are unpersuaded by Petitioner’s argument that the cutter assembly may
have multiple operating speeds. See id. at 7–8. Even acknowledging that
the recitation of “a predetermined operating speed” in the “constant speed
phase” allows for the possibility that the cutter assembly may have more
than one predetermined operating speed, the relevant limitation refers to
increasing the speed of the cutter assembly “to the operating speed”
(emphasis added). Petitioner’s argument is not supported by the claim
language nor by any evidence presented by Petitioner.
We adopt Patent Owner’s construction of “to the operating speed” as
“up to, but not past, the operating speed.”
IPR2014-00877
Patent 7,581,688 B2

9
B. Anticipation of Claims 1–16 by Kolar
Petitioner challenges claims 1–16 as anticipated under 35 U.S.C.
§ 102(b) by Kolar. Pet. 24–27, 34–48. Kolar “pertains to food and drink
blenders having a plurality of programmable blend operations.” Ex. 1001,
col. 1, ll. 12–14. An exemplary blender includes a housing and a blending
assembly, including a motor. Id.at col. 3, ll. 61–65. Figure 6 of Kolar is
reproduced below.

Figure 6 is a graph of blender motor speed versus time for an exemplary
drink program. Id. at col. 4, ll. 41–42. Petitioner identifies a “constant
speed phase” between t1 and t2, a “deceleration phase” between t2 and t3, and
an “acceleration phase” between t4 and t5. Pet. 26. Petitioner also identifies
disclosure in Kolar that a user may customize drink programs, suggesting
that “[o]ne type of blend program is called ‘pulse blend cycle.’” Id. at 18
(citing Ex. 1001, col. 8, ll. 13–15, Fig. 9).
We agree with Patent Owner that Kolar does not disclose
“automatically controlling a rotational speed of the cutter assembly to effect
IPR2014-00877
Patent 7,581,688 B2

10
a pulsing,” wherein each pulse comprises the recited “constant speed phase,”
“deceleration phase,” and “acceleration phase.” See PO Resp. 26–31. First,
Patent Owner observes that the “pulse blend” routine identified by Petitioner
executes separately from automatically controlled user drink programs as a
manual pulse in which the blender motor runs only as long as the user is
pushing the pulse button. Id. at 27–28. Patent Owner supports its position
with unrebutted testimony by Mr. Faerber. Ex. 2001 ¶ 74. Thus, the “pulse
blend” routine described by Kolar does not “automatically” control a
rotational speed of the cutter assembly to effect a pulsing as required by the
independent claims. Second, as Mr. Faerber testifies, Figure 6 of Kolar
“depicts a set of different, non-repeating steps. No part of the drink program
is repeated.” Ex. 2001 ¶ 75. The illustrated sequence, for example, has only
a single deceleration phase, and, therefore, does not disclose “effect[ing] a
pulsing” by effecting a series of repeated pulses that each have a constant
speed phase, a deceleration phase, and an acceleration phase. See PO
Resp. 31.
We also agree with Patent Owner that Kolar does not disclose an
acceleration phase, where the speed of the cutter assembly is “increased
from the settling speed to the operating speed,” as recited in each of the
independent claims. See id. at 32–33. Patent Owner supports its position
with unrebutted testimony by Mr. Faerber. Ex. 2001 ¶¶ 77–83. The
acceleration phase identified by Petitioner between t4 and t5 in Figure 6 of
Kolar does not increase “to the operating speed,” as we have construed the
phrase, but instead increases to a speed greater than the operating speed.
IPR2014-00877
Patent 7,581,688 B2

11
For these reasons, we conclude that Petitioner has not shown, by a
preponderance of the evidence, that any claim of the ’688 patent is
anticipated by Kolar.

C. Obviousness of Claims 1–16 Over Kolar
Petitioner challenges claims 1–16 as unpatentable under 35 U.S.C.
§ 103(a) over Kolar. Pet. 26–27, 34–48. Petitioner contends that “it would
have been obvious within the skill in the art to duplicate what is disclosed in
Figure 6 of Kolar, such as the period from 0 to t4, to make the constant speed
phase, acceleration and deceleration repetitive.” Id. at 26–27 (citing In re
Harza, 274 F.2d 669, 671 (CCPA 1960)).
As Petitioner observes, the Board has found the rule of Harza
inapplicable where duplicating components would have rendered the
claimed subject matter unsuitable for its intended purpose. PO Resp. 43
(citing Ex parte Efremova, No. 2010-003842, 2011 WL 1131352, at *3
(BPAI Mar. 28, 2011)). We agree with the reasoning of the panel in
Efremova. Mr. Faerber testifies that “it would not have been obvious to
repeat the drink program of Figure 6, in whole or in part” because
“[r]epeating a program would risk overmixing the blender contents, and
would defeat the purpose of having a set program to produce consistent and
complete results.” Ex. 2001 ¶ 89. We credit the testimony of Mr. Faerber,
which is uncontroverted.
Accordingly, we conclude that Petitioner has not shown, by a
preponderance of the evidence, that any claim of the ’688 patent is
unpatentable under 35 U.S.C. § 103(a).
IPR2014-00877
Patent 7,581,688 B2

12
D. Anticipation of Claims 1–16 by Wulf
Petitioner challenges claims 1–16 as anticipated under 35 U.S.C.
§ 102(b) by Wulf. Pet. 28–30, 34–48. Wulf discloses a blender having each
of the components recited in the preamble of claim 1, as illustrated in Figure
3 of Wulf. See generally Ex. 1003, col. 5, l. 20 – col. 8, l. 65. Petitioner
observes that Wulf describes a method for chopping ice as background
information: “a user may hit a slow button, wait a while, hit a faster speed,
wait, hit yet a faster speed, etc.” Pet. 28 (citing Wulf, col. 2, ll. 15–17). In
addition, Wulf discloses a memory preprogrammed with various motor
commands that are designed to achieve particular results. Ex. 1003, col. 14,
ll. 7–10. In advancing its challenge of claims 1–16 as anticipated by Wulf,
Petitioner focuses on a specific one of these routines, disclosed as suitable
for making powdered drinks. Pet. 28. Figure 25 of Wulf is reproduced
below.

Figure 25 provides an example of a routine for making powdered drinks that
includes repeated operation of the blender at high speed for 15 seconds
followed by operation at low speed for 5 seconds.
Petitioner contends that “the high speed in Wulf’s Figure 25 is
equivalent to the operating speed in the [’]688 [p]atent claims while the low
IPR2014-00877
Patent 7,581,688 B2

13
speed in Wulf’s Figure 25 is equivalent to the settling speed in the [’]688
[p]atent claims.” Pet. 28. Petitioner reasons that the “constant speed phase”
of claim 1 corresponds to the 15-second operation at high speed; that the
“deceleration phase” corresponds to the “ramp down” to low speed; and that
the “acceleration phase” corresponds to the “ramp up” to high speed. Id. at
28–29.
First, the manual process described by Wulf as background
information does not anticipate the independent claims, which require
“automatically controlling a rotational speed of the cutter assembly” to
effect the recited pulsing (emphasis added). “[A]bsence from the reference
of any claimed element negates anticipation.” Kloster Speedsteel AB v.
Crucible, Inc., 793 F.2d 1565, 1571 (Fed. Cir. 1986). In addition, the
manual process described by Wulf specifically teaches increasing the speed
of each pulse, not increasing from the settling speed “to the operating
speed,” as we have construed the phrase.
Second, Petitioner draws inferences from the described manual
process to inform understanding of operation of the automated process
illustrated by Figure 25. See Pet. 29–30; Reply 9–10. In particular,
Petitioner contends that Wulf recognizes that chopping of ice may benefit
from repeatedly reducing the speed of the cutter assembly. Pet. 29; Reply 9–
10. Petitioner further contends that settling of items around the cutter
assembly is “merely an inherent property when a blender is operating at a
‘low speed.’” Pet. 28.
Petitioner’s inferential argument is not without appeal. But Petitioner
provides no evidence to support its position. It provides no testimonial
IPR2014-00877
Patent 7,581,688 B2

14
evidence by any witness for us to consider, and it has left the testimony of
Patent Owner’s witness, Mr. Faerber, unrebutted. Under such
circumstances, we are unwilling to discount Mr. Faerber’s testimony that
Wulf’s description of the manual process “is not relevant to the ‘settling
speed’ limitation.” Ex. 2001 ¶ 97. The unsupported attorney argument
presented by Petitioner cannot take the place of evidence. See In re Cole,
326 F.2d 769 (CCPA 1964).
We conclude that Petitioner has not shown, by a preponderance of the
evidence, that any claim of the ’688 patent is anticipated by Wulf.

III. ORDER
In consideration of the foregoing, it is hereby:
ORDERED that, based on a preponderance of the evidence, claims 1–
16 of U.S. Patent No. 7,581,688 B2 have not been shown to be unpatentable;
and
FURTHER ORDERED that, because this is a final written decision,
parties to this proceeding seeking judicial review of our decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.

IPR2014-00877
Patent 7,581,688 B2

15
PETITIONER
R. Joseph Trojan
TROJAN LAW OFFICES
Trojan@trojanlawoffices.com

PATENT OWNER
Richard S.J. Hung
MORRISON & FOERSTER LLP
rhung@mofo.com