United States Court of Appeals
for the Federal Circuit
__________________________
GENERAL PROTECHT GROUP, INC.,
Appellant,
and
WENZHOU TRIMONE SCIENCE & TECHNOLOGY
ELECTRIC CO., LTD.,
Appellant,
and
SHANGHAI ELE MANUFACTURING
CORPORATION,
Appellant,
v.
INTERNATIONAL TRADE COMMISSION,
Appellee,
and
PASS & SEYMOUR, INC.,
Intervenor.
__________________________
2009-1378, -1387, -1434
__________________________
On appeal from the United States International Trade
Commission in Investigation No. 337-TA-615.
___________________________
Decided: August 27, 2010
GENERAL PROTECHT GROUP v. ITC 2
___________________________
WILLIAM F. LONG, Sutherland Asbill & Brennan LLP,
of Atlanta, Georgia, argued for appellant General Pro-
techt Group, Inc. With him on the brief were ANN G.
FORT and JOSHUA D. CURRY.
LEI MEI, Mei & Mark LLP, of Washington, DC, argued
for appellant Wenzhou Trimone Science & Technology
Electric Co., Ltd. With him on the brief was REECE W.
NIENSTADT.
TONY D. CHEN, Caywin Law Group, of Los Angeles,
California, argued for appellant Shanghai Ele Manufac-
turing Corporation.
PAUL M. BARTKOWSKI, Attorney, Office of the General
Counsel, United States International Trade Commission,
of Washington, DC, argued for appellee. With him on the
brief were JAMES M. LYONS, General Counsel, and WAYNE
W. HERRINGTON, Assistant General Counsel.
MARK J. ABATE, Goodwin Procter LLP, of New York,
New York, argued for intervenor. Of counsel were ANKUR
P. PAREKH, ANDREW N. STEIN, CALVIN E. WINGFIELD, JR.;
JENNIFER A. ALBERT, of Washington, DC; and CHARLES H.
SANDERS, of Boston, Massachusetts. Of counsel on the
brief were GEORGE R. MCGUIRE and DAVID L. NOCILLY,
Bond, Schoeneck & King, PLLC, of Syracuse, New York.
__________________________
Before NEWMAN, DYK, and PROST, Circuit Judges.
Opinion for the court filed by Circuit Judge DYK.
Dissenting opinion filed by Circuit Judge NEWMAN.
DYK, Circuit Judge.
3 GENERAL PROTECHT GROUP v. ITC
General Protecht Group, Inc. (“GPG”), Wenzhou Tri-
mone Science and Technology Electric Co., Ltd. (“Tri-
mone”), and Shanghai ELE Manufacturing Corp. (“ELE”)
appeal from a final determination of the International
Trade Commission (“Commission”) that the importation
into the United States, sale for importation, or sale within
the United States of certain ground fault circuit inter-
rupters (“GFCIs”) violated section 337 of the Tariff Act of
1930, as amended, 19 U.S.C. § 1337. The Commission
issued limited exclusion orders against the importation of
GFCI products from each of the three appellants. See In
re Certain Ground Fault Circuit Interrupters & Prods.
Containing Same, Inv. No. 337-TA-615 (Int’l Trade
Comm’n Mar. 9, 2009) (“Final Determination”). The
Commission found that devices manufactured by appel-
lants infringe U.S. Patent Nos. 7,283,340 (“the ’340 pat-
ent”), 5,594,398 (“the ’398 patent”), and 7,164,564 (“the
’564 patent”), and that none of these patents is invalid or
unenforceable.
We hold that the Commission erred in three respects:
(1) GPG’s 2003 and 2006 GFCIs and ELE’s 2006 GFCIs do
not infringe the ’340 patent, because they do not have a
“detection circuit” as claimed in the patent; (2) Trimone’s
2006 GFCIs and ELE’s 2006 GFCIs do not infringe the
’340 patent, because the “load terminals” of the patent do
not include receptacle outlets; and (3) GPG’s 2006 GFCIs
do not infringe the ’398 patent, because GPG performs the
function of the “latching means” in a substantially differ-
ent way than the structure disclosed in the patent. We
remand for further proceedings in these respects. We
affirm the Commission’s determination in all other re-
spects.
BACKGROUND
GFCI receptacles are the electrical outlets found
commonly in bathrooms and kitchens. Typically, they can
GENERAL PROTECHT GROUP v. ITC 4
be identified by the “test” and “reset” buttons positioned
between the two electrical sockets. GFCIs are designed to
protect people from potentially fatal electrical shocks by
cutting off the flow of electricity—or “tripping”—when the
device detects a “ground fault.” A GFCI detects a ground
fault when the electrical current flowing from the GFCI to
a connected device on the “hot” prong of the socket does
not match the current flowing from the connected device
back to the GFCI on the “neutral” prong of the socket.
This indicates that electrical current is leaking out along
an unintended path, possibly through a person. This may
be due to an exposed wire or the connected device’s being
dropped in water, for example.
Pass & Seymour, Inc. (“Pass & Seymour”) is the as-
signee of various GFCI patents. In September 2007, on a
complaint filed by Pass & Seymour, the Commission
initiated an investigation to determine whether violations
of section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337)
had occurred by the importation into the United States,
the sale for importation, or the sale within the United
States after importation of certain GFCIs that allegedly
infringe some of Pass & Seymour’s patents. GPG, Tri-
mone, ELE, and others were named as respondents.
On September 24, 2008, the Administrative Law
Judge (“ALJ”) issued an initial determination finding
violations of section 337 by each of the appellants. See In
re Certain Ground Fault Circuit Interrupters & Prods.
Containing Same, Inv. No. 337-TA-615 (Int’l Trade
Comm’n Sept. 24, 2008) (“Initial Determination”). Appel-
lants petitioned the Commission for review of the ALJ’s
decision, and the Commission determined that it would
review certain of the ALJ’s findings.
On March 9, 2009, the Commission issued its final
opinion. With respect to the devices and claims involved
in this appeal, the Commission, while modifying the ALJ’s
claim constructions in a few respects, affirmed the find-
5 GENERAL PROTECHT GROUP v. ITC
ings of infringement. GPG, Trimone, and ELE appealed.
This opinion addresses that appeal. In certain other
respects, the Commission reversed the ALJ’s findings of
infringement. Pass & Seymour appealed. In a separate
opinion released today we address that appeal. 1
Insofar as is pertinent here, the Commission issued a
limited exclusion order prohibiting entry into the United
States of GPG GFCIs found to infringe one or more of
claims 1 and 7 of the ’398 patent and claims 14 and 18 of
the ’340 patent; Trimone GFCIs infringing one or more of
claims 14 and 18 of the ’340 patent; and ELE GFCIs
infringing one or more of claims 1, 7, and 8 of the ’398
patent, claims 14, 18, and 30 of the ’340 patent, and
claims 1 and 15 of the ’564 patent. The Commission's
determination became final on May 8, 2009, at the conclu-
sion of the sixty-day presidential review period. See 19
U.S.C. § 1337(j)(4). As noted, GPG, Trimone, and ELE
timely appealed, and we have jurisdiction under 28 U.S.C.
§ 1295(a)(6).
DISCUSSION
GPG, Trimone, and ELE raise numerous issues chal-
lenging the Commission’s final determination, arguing
that their accused devices do not infringe or that the
asserted patents are invalid. We have considered appel-
lants’ arguments, and find most of them unpersuasive.
Therefore, we affirm the Commission’s determination in
most respects, and we think an extended discussion of
those points is unnecessary. We focus our discussion on
only those issues as to which we conclude that the Com-
mission was in error.
1 The Commission’s determination and limited
exclusion order also involved other respondents and
products, and additional patents not included in either
appeal.
GENERAL PROTECHT GROUP v. ITC 6
We review the Commission’s final determination of a
violation of section 337 under the standards of the Admin-
istrative Procedure Act (“APA”). See 19 U.S.C. § 1337(c).
Under the APA, this court reviews the Commission’s legal
determinations de novo and its factual findings for sub-
stantial evidence. See 5 U.S.C. § 706(2)(A), (E); Honeywell
Int’l, Inc. v. Int’l Trade Comm’n, 341 F.3d 1332, 1338
(Fed. Cir. 2003). Claim construction is an issue of law
and is subject to de novo review. See Cybor Corp. v. FAS
Techs., Inc., 138 F.3d 1448, 1451 (Fed. Cir. 1998) (en
banc).
I The ’340 Patent
The Commission found that GFCI devices from each
of the three appellants infringe the ’340 patent. GPG’s
2003 and 2006 GFCIs were found to infringe claims 14
and 18; Trimone’s 2006 GFCIs were found to infringe
found to infringe claims 14 and 18; and ELE’s 2006 GFCIs
were found to infringe claims 14, 18, and 30.
The ’340 patent is directed to a GFCI receptacle that
“detects the wiring state of the device and inhibits opera-
tion if the device is miswired.” ’340 patent col.2 ll.29–31.
When properly wired, the electrical source is connected to
the GFCI’s “line terminals,” from which power flows into
the rest of the device. However, there is a chance that an
installer may accidentally miswire the electrical source to
the device’s “load terminals,” which are normally intended
for connection to downstream outlets that receive ground
fault protection through the GFCI. If miswired, the
devices do not protect against a ground fault. To effect
the miswiring protection, the ’340 patent has a “detection
circuit” to detect whether the GFCI device is properly
wired to an electrical circuit, and “four sets of interrupt-
ing contacts” configured to make or break an electrical
circuit between the line terminals and the load terminals,
7 GENERAL PROTECHT GROUP v. ITC
depending on the signal from the detection circuit. Claim
14 is representative:
14. An electrical wiring device comprising:
line terminals and load terminals;
at least one detection circuit including a cir-
cuit segment coupled between the line ter-
minals and configured to generate a
predetermined signal in response to detect-
ing a proper wiring condition, the prede-
termined signal not simulating a fault
condition, a proper wiring condition being
effected when the line terminals are con-
nected to a source of AC power; and
an interrupting contact assembly coupled to
the at least one detection circuit, the in-
terrupting contact assembly including four
sets of interrupting contacts that are con-
figured to provide electrical continuity be-
tween the line terminals and the load
terminals in a reset state and configured to
interrupt the electrical continuity in
tripped state, the interrupting contact as-
sembly being substantially prevented from
effecting the reset state absent the prede-
termined signal being generated by the at
least one detection circuit.
’340 patent col.10 ll.7–25 (emphases added).
A “detection circuit”
ELE and GPG argue that their GFCIs do not infringe
the ’340 patent because their devices do not have a “detec-
tion circuit.” The ALJ construed “detection circuit” to
mean “at least one detection circuit having a circuit
segment connected between the line terminals and con-
figured to generate a predetermined signal in response to
GENERAL PROTECHT GROUP v. ITC 8
detecting a proper wiring condition, which occurs when
the line terminals are connected to a source of AC power.”
Initial Determination, slip op. at 85. 2 Appellants did not
petition the full Commission for review of the ALJ’s
construction. Thus, the Commission did not review the
ALJ’s construction, and therefore adopted it. Neither
ELE nor GPG challenges on appeal the appropriateness of
the ALJ’s original claim construction. GPG, however,
argues that the ALJ effectively modified the construction
or misapplied it with respect to the GPG GFCIs.
ELE argues that the Commission erred in adopting
the ALJ’s finding that its GFCIs infringe the ’340 patent,
because its devices do not have a circuit that generates a
“predetermined signal” when the circuit detects that the
GFCI device is properly wired. 3 Rather, ELE claims that
its GFCIs are designed to electrically isolate the load
terminals, so that the devices simply only have power
when an AC power source is properly wired to the GFCIs’
line terminals, and lack power when the power source is
miswired to the load terminals.
The ALJ based his finding that the ELE 2006 GFCIs
meet the “detection circuit” limitation on the testimony of
2 Claim 18 is dependent from claim 14, and
thus has the same limitation. The language of independ-
ent claim 30 is slightly different from that of claim 14
with respect to this element. However, none of the parties
has suggested that the difference in language represents
any difference in scope. The ALJ treated the elements as
identical. See Initial Determination, slip op. at 92.
3 The dissent suggests that the parties did not
raise this argument, but ELE clearly argued that “[b]y
treating the ‘predetermined signal’ as including whatever
AC power happens to arrive at a building from the local
power plant, the Commission has broadened this limita-
tion beyond all recognition and effectively reads it out of
the claim.” Br. of Appellant Shanghai ELE Mfg. Corp. 42.
9 GENERAL PROTECHT GROUP v. ITC
Pass & Seymour’s expert, Dr. Tom Harman (“Dr. Har-
man”). At the hearing before the ALJ, Dr. Harman pre-
sented the circuit diagram for ELE’s device and identified
a portion of the device as the “detection circuit.” See J.A.
40,396. He then identified the “predetermined signal” as
electrical current flowing in from the hot line terminal,
through the identified circuit, and out through the neutral
line terminal. Id.
This testimony, however, is plainly inconsistent with
the asserted claims of the ’340 patent and the ALJ’s
construction. The construed claims require the “detection
circuit” to “generate a predetermined signal in response to
detecting a proper wiring condition.” Initial Determina-
tion, slip op. at 85 (emphasis added). But as Dr. Har-
man’s own testimony makes clear, his “predetermined
signal” is merely the “current flow” originating from the
hot line terminal. J.A. 40,396. The identified circuit does
not generate this current; it is the current that comes
from the AC power connection. So instead of detecting a
proper wiring condition and generating a signal in re-
sponse, as the properly construed claim requires, the
accused GFCIs simply have power to operate, or not. Dr.
Harman’s testimony is not substantial evidence to sup-
port a finding that ELE’s 2006 GFCIs infringe claims 14,
18, and 30 of the ’340 patent.
While the focus of GPG’s “detection circuit” argument
is somewhat different than ELE’s, GPG’s 2003 and 2006
GFCIs also do not satisfy the “detection circuit” limitation
for the same reason as argued by ELE. The circuits
identified by Dr. Harman in the accused GPG devices do
not generate any signal in response to detecting a proper
wiring condition. Rather, the GFCIs either have power if
properly wired, or they do not if miswired. AC current
from the hot line terminal flows into each identified
circuit when properly wired, but that AC current cannot
be the “predetermined signal” because it is not generated
GENERAL PROTECHT GROUP v. ITC 10
by the circuit. The Commission acknowledged that both
ELE’s and GPG’s GFCIs work in the same way, by isolat-
ing the load terminals so that power only flows when the
devices are wired properly to the line terminals. Oral
Arg. at 21:31–:46. Therefore, GPG’s 2003 and 2006
GFCIs also do not infringe claims 14 and 18 of the ’340
patent.
B “load terminals”
Trimone argues that its 2006 GFCIs do not satisfy the
“four sets of interrupting contacts that are configured to
provide electrical continuity between the line terminals
and the load terminals in a reset state and configured to
interrupt the electrical continuity in tripped state” limita-
tion of the ’340 patent. The ALJ construed “four sets of
interrupting contacts” to mean “four pairs of electrical
contacts that can separate from each other to interrupt
the flow of electricity.” Initial Determination, slip op. at
89. The partial figure below, taken from Figure 1 of the
’340 patent, shows a circuit interrupter, indicated by label
number 120, having four pairs of electrical contacts—two
on the line terminal side of the circuit (line terminals to
the left side of the figure not shown) and two on the load
terminal side of the circuit.
’340 Patent, Figure 1 (partial)
11 GENERAL PROTECHT GROUP v. ITC
The other disclosed GFCI embodiments in the ’340 patent
all have the same basic circuit interrupter.
Trimone argues that its 2006 GFCI devices do not sat-
isfy the “four sets of interrupting contacts that are config-
ured to provide electrical continuity between the line
terminals and the load terminals in a reset state and
configured to interrupt the electrical continuity in tripped
state” limitation of the ’340 patent because its GFCIs
have only two sets of contacts configured to make or break
the circuit between the line terminals and the load termi-
nals. The figure below shows Trimone’s circuit inter-
rupter (the wires in the lower left of the figure lead to the
line terminals).
Trimone 2006 GFCI Circuit Interrupter
Trimone asserts that it was error for the ALJ to count the
two sets of contacts in Trimone’s GFCIs between the line
terminals and the GFCI receptacle outlets—the electrical
sockets on the face of the GFCI device—in finding the
limitation satisfied, because receptacle outlets are not
load terminals. The Commission and Pass & Seymour
respond that receptacle outlets are also known as “user
load terminals”; that someone of ordinary skill in the art
would understand receptacle outlets to be a type of load
terminal; and that any devices connected to a GFCI,
including those connected to receptacle outlets, are con-
GENERAL PROTECHT GROUP v. ITC 12
sidered “loads.” The issue is thus whether the term “load
terminals” in the ’340 patent includes receptacle outlets.4
We start with the ’340 patent itself. A patent’s speci-
fication “is the single best guide to the meaning of a
disputed term.” Phillips v. AWH Corp., 415 F.3d 1303,
1315 (Fed. Cir. 2005) (en banc) (quoting Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996))
(quotation mark omitted). The ’340 patent never de-
scribes receptacle outlets as load terminals. In fact, the
circuit diagram drawings in the ’340 patent all clearly
label the load terminals separately from the receptacle
outlets, as seen in the portion of Figure 1 above.
We have held that expert testimony can be useful in
assisting a court “to establish that a particular term in
the patent . . . has a particular meaning in the pertinent
field.” Phillips, 415 F.3d at 1318. However, we have
cautioned that “conclusory, unsupported assertions by
experts as to the definition of a claim term are not useful
to a court.” Id. The testimony relied on by the ALJ does
not reveal that the term “load terminals” had a particular
meaning in the art that included receptacle outlets. None
of the experts identified a particular meaning in the art,
and an expert’s subjective understanding of a patent term
is irrelevant. See Howmedica Osteonics v. Wright Med.
Tech., 540 F.3d 1337, 1347 & n.5 (Fed. Cir. 2008) (holding
that an inventor’s subjective intent in using a term is
irrelevant, but that the inventor may testify as an expert
on the established meaning of particular terms in the
4 This issue also applies to ELE’s 2006 GFCIs,
which we have already concluded do not infringe the ‘340
patent. Contrary to the dissent, ELE raises the load
terminal issue. See Br. of Appellant Shanghai ELE Mfg.
Corp. 44–45 (“Notably, the ’340 patent does not contem-
plate separating the downstream load terminals from the
surface (‘face’) load or receptacle terminals as is done in
ELE’s 2006 GFCIs.”).
13 GENERAL PROTECHT GROUP v. ITC
relevant art); Symantec Corp. v. Computer Assocs. Int’l,
522 F.3d 1279, 1291 (Fed. Cir. 2008) (disregarding expert
testimony that “simply recite[d] how each expert would
construe [a] term . . . based on his own reading of the
specification” because it did “not identify the ‘accepted
meaning in the field’ to one skilled in the art”); Si-
norgchem Co., Shandong v. Int’l Trade Comm’n, 511 F.3d
1132, 1137 n.3 (Fed. Cir. 2007) (“We attribute no weight
to that testimony because the experts did not identify any
evidence that those skilled in the art would recognize
‘controlled amount,’ or any term used in the specification,
has an accepted meaning in the field of chemistry. Under
such circumstances, testimony as to how one skilled in the
art would interpret the language in the specification is
entitled to little or no weight.”).
Moreover, contrary to the ALJ’s unsupported conclu-
sion, the experts here never suggested that receptacle
outlets, which they also called “user load terminals” or
“user accessible load terminals,” could be referred to as
simply load terminals. Rather, they were fastidious in
referring to them as separate elements. See J.A. 40,377
(testimony of Pass & Seymour witness Jim Osterbrock)
(“The G4 design separates the line terminals from the
load terminals and user accessible load terminals.”); id. at
40,378 (“[W]e differentiate by calling them load terminals
and user accessible load terminals.”); id. at 40,938 (testi-
mony of Shanghai Meihao Electric Co. expert Dr. Mark
Horenstein) (agreeing that “receptacles are also referred
to as user accessible load terminals”). The testimony by
Dr. Harman relied on by the ALJ does not mention recep-
tacle outlets or user load terminals at all. See id. at
40,408. Furthermore, usage of the term “user load termi-
nals” to refer to receptacle outlets in other patents does
not help the patentee here. There is no evidence that a
person of ordinary skill in the art would read the term
“load terminals” to also include receptacle outlets, or user
GENERAL PROTECHT GROUP v. ITC 14
load terminals, and there is nothing in the extrinsic
evidence that in any way contradicts the meaning of the
term “load terminals” apparent from the face of the pat-
ent.
Therefore, the ALJ erred in construing the term “load
terminals” to also include receptacle outlets. As a result,
under the proper construction of “load terminals,” Tri-
mone’s 2006 GFCIs and ELE’s 2006 GFCIs have only two
“sets of interrupting contacts that are configured to pro-
vide electrical continuity between the line terminals and
the load terminals in a reset state and configured to
interrupt the electrical continuity in tripped state,” and
do not infringe the asserted claims of the ’340 patent.
II The ’398 Patent
The Commission found that GPG’s 2006 GFCIs in-
fringe claims 1 and 7 of the ’398 patent. GPG argues that
the structure in its 2006 GFCIs for performing the func-
tion of the “latching means” in claims 1 and 7 is substan-
tially different from that disclosed in the ’398 patent.
The ’398 patent discloses a new mechanical architec-
ture for a GFCI receptacle, with detailed descriptions of
an improved contact system that can move between a
circuit-making position and a circuit-breaking position.
The invention involves fixed contacts on the line terminal
side of the device and fixed contacts on the load terminal
side of the device, separated by a break in the device
circuit that can be completed by a moveable conducting
member when the device is in the reset, or circuit-making,
state. The claims use means-plus-function language to
define several elements, pursuant to 35 U.S.C. § 112 ¶ 6.
Claim 1 is representative:
15 GENERAL PROTECHT GROUP v. ITC
1. A ground fault interrupter (gfi) wiring de-
vice for connection in an electrical circuit, said de-
vice comprising:
a) housing means defining an enclosed
space;
b) at least one pair of electrical terminals
fixedly supported in spaced relation
within said enclosed space;
c) a unitary, electrically conducting mem-
ber carrying a pair of spaced electrical
contacts;
d) mounting means for said conducting
member to permit movement thereof be-
tween a first position, wherein said pair of
contacts are in respective, circuit-making
engagement with said pair of terminals,
and a second position, wherein both of
said pair of contacts are in spaced, circuit-
breaking relation to said pair of terminals;
e) biasing means urging said conducting
member toward movement to said second
position;
f) latching means releasably retaining said
conducting member in said first position;
and
g) actuating means for releasing said
latching means to permit said biasing
means to move said conducting member to
said second position in response to a pre-
determined fault condition in said electri-
cal circuit.
’398 patent col.13 ll.24–46 (emphasis added). The ele-
ment at issue here is the “latching means” element.
GENERAL PROTECHT GROUP v. ITC 16
Claim 7 is a dependent claim that also requires the same
“latching means” element.
“Literal infringement of a means-plus-function limita-
tion requires that the relevant structure in the accused
device perform the identical function recited in the claim
and be identical or equivalent to the corresponding struc-
ture in the specification.” Applied Med. Res. v. U.S.
Surgical Corp., 448 F.3d 1324, 1333 (Fed. Cir. 2006). A
structure in the accused device constitutes an equivalent
to the corresponding structure in the patent only if the
accused structure performs the identical function “in
substantially the same way, with substantially the same
result.” Id.; see Kemco Sales, Inc. v. Control Papers Co.,
208 F.3d 1352, 1364 (Fed. Cir. 2000) (stating that in order
to literally infringe, “the accused structure must either be
the same as the disclosed structure or be a section 112,
paragraph 6 ‘equivalent,’ i.e., (1) perform the identical
function and (2) be otherwise insubstantially different
with respect to structure”).
The ALJ concluded that the function of the latching
means is “releasably retaining the conducting member in
the first position,” and that the structure described in the
’398 patent corresponding to that function is “a pin pass-
ing through a hole in the block having a shoulder that
cooperates with a hole in the latch member and a spring
biasing the pin to retain the conducting member in the
first position, and equivalents thereof.” Final Determina-
tion, slip op. at 10. Under this construction, the ALJ
found that “because [GPG’s 2006 GFCIs] contain a mag-
net capable of retaining an armature that is attached to
the GFCI’s ‘mounting means,’” and because “[w]hen the
armature is retained by the magnet, the conducting
member is in a first (circuit-making) position with respect
to the pair of terminals,” the GPG GFCIs satisfy the
function of the latching means and contain a structural
17 GENERAL PROTECHT GROUP v. ITC
equivalent to the latching means structure disclosed in
the ’398 patent. See Initial Determination, slip op. at 66.
The Commission did not modify the ALJ’s definition of
the function, but it did modify the identified structure “to
include the entire ‘latch member,’ and not only the hole
therein.” Final Determination, slip op. at 11. Despite
modifying the structure corresponding to the latching
means, the Commission upheld the ALJ’s finding that
GPG’s 2006 GFCIs contain structural equivalents to the
structure identified in the ’398 patent. See id. at 12.
GPG argues that the structure in its 2006 GFCIs per-
forms the function of the latching means in a substan-
tially different way than the structure disclosed in the
’398 patent. GPG’s structure, as the ALJ noted, uses only
a magnet in order to retain the contacts of the conducting
member in the first, circuit-making position. In contrast,
the disclosed structure in the ’398 patent employs a
mechanical solution requiring the interaction of a number
of separate parts, including a spring latching member, a
pin with a shoulder extending through a hole in the
spring latching member, and a spring biasing the pin to
pull against the force of the spring latching member.
As we held in Toro Co. v. Deere & Co., 355 F.3d 1313
(Fed. Cir. 2004), one system that accomplishes a function
mechanically and another system that accomplishes the
same function using magnetic force “function in funda-
mentally different ways.” Id. at 1324. The Commission
and Pass & Seymour argue that the ALJ’s decision was
supported by substantial evidence because of the testi-
mony of expert witnesses that one of ordinary skill in the
art would have considered the magnetic matching struc-
ture to be interchangeable with the mechanical structure
of the ’398 patent. See Initial Determination, slip op. at
67. However, the experts merely testified that magnets
were well known as latches, not that they performed the
latching means function in substantially the same way as
GENERAL PROTECHT GROUP v. ITC 18
the mechanical latch disclosed in the patent. See J.A.
40,524 (testimony of Pass & Seymour expert Dr. Fred
Stolfi) (“The use of a magnet as a latch is fairly common
in other devices. You know, for example like a door latch
often has a magnet catch. And there [are] patents that I
have looked at that speak about a magnetic latch in a
GFCI . . . .”); id. at 40,750 (testimony of ELE expert
Kenneth Eugene Haynes) (agreeing that “permanent
magnets were known in the art of latching structures and
GFCIs in the late 1980s and 1990s”); id. at 40,979 (testi-
mony of GPG expert Dr. James Roberge) (agreeing that
permanent magnets had been used in “latching relays” in
the electrical industry to perform latching functions).
This testimony “goes to the function or result of these
systems, and begs the issue of the way in which [the
mechanical] systems and [magnetic] systems actually
work.” Toro, 355 F.3d at 1324. We therefore hold that
substantial evidence does not support the Commission’s
finding that the magnetic latching structure of GPG’s
2006 GFCI is equivalent to the mechanical structure
disclosed in the ’398 patent corresponding to the latching
means.
CONCLUSION
For the aforementioned reasons, we reverse the
Commissions findings that GPG’s 2003 GFCIs infringe
claims 14 and 18 of the ’340 patent; that GPG’s 2006
GFCIs infringe claims 1 and 7 of the ’398 patent and
claims 14 and 18 of the ’340 patent; that Trimone’s 2006
GFCIs infringe claims 14 and 18 of the ’340 patent; and
that ELE’s 2006 GFCIs infringe claims 14, 18, and 30 of
the ’340 patent. We remand to the Commission to modify
its limited exclusion order in accordance with this opin-
ion.
AFFIRMED IN PART, REVERSED IN PART, and
REMANDED
19 GENERAL PROTECHT GROUP v. ITC
COSTS
No costs.
United States Court of Appeals
for the Federal Circuit
__________________________
GENERAL PROTECHT GROUP, INC.,
Appellant,
and
WENZHOU TRIMONE SCIENCE & TECHNOLOGY
ELECTRIC CO., LTD.,
Appellant,
and
SHANGHAI ELE MANUFACTURING
CORPORATION,
Appellant,
v.
INTERNATIONAL TRADE COMMISSION,
Appellee,
and
PASS & SEYMOUR, INC.,
Intervenor.
__________________________
2009-1378,-1387,-1434
__________________________
Appeal from the United States International Trade
Commission in Investigation No. 337-TA-615.
NEWMAN, Circuit Judge, dissenting.
GENERAL PROTECHT GROUP v. ITC 2
With all respect to my colleagues on this panel, they have
erred in law and in procedure, in their reversal of the find-
ings and rulings of the Commission on the issues presented
in this appeal. The Commission found infringement by
some of the Ground Fault Circuit Interrupters of some
respondents, In re Certain Ground Fault Circuit Interrupt-
ers and Prods. Containing Same, Inv. No. 337-TA-615 (Int’l
Trade Comm’n Mar. 9, 2009), affirming with modifications
the findings and rulings of the ALJ in In re Certain Ground
Fault Circuit Interrupters and Products Containing Same,
Inv. No. 337-TA-615 (Int’l Trade Comm’n Sept. 24, 2008)
(“Initial Decision” or “I.D.”). The Initial Decision of 170
pages and the Commission’s supplemental rulings of 32
pages present a full understanding of the technology, with
rigorous discussion of the evidence and extensive analysis,
findings, and conclusions. This court now finds its own
facts, applies theories that were not raised by any party,
uses incorrect standards of review, and creates its own
electrical technology contrary to the uniform and unchal-
lenged expert testimony.
In the companion cross-appeal decided today by sepa-
rate opinion, Appeal Nos. 2009-1338, -1369, taken by the
patentee Pass & Seymour from the Commission’s rulings
adverse to it, the court deferentially affirms the Commis-
sion’s findings of non-infringement, while in this appeal my
colleagues act de novo to reverse the Commission’s findings
of infringement. In reversing the Commission, the court
does not discuss the substantial evidence supporting the
Commission’s findings. In contrast to the companion ap-
peal, the court bypasses the standards of APA review, and
makes new finding and rulings on new theories, some of
which were not presented and not argued by any party, and
which are conspicuously incorrect. Further, despite its
changes in claim construction, its new findings, and its de
novo applications of law to fact, the court provides no oppor-
tunity for the patentee or the Commission to respond to the
3 GENERAL PROTECHT GROUP v. ITC
court’s new arguments and adjudications. I must, respect-
fully, dissent.
DISCUSSION
The three appellants are Shanghai ELE Manufacturing
Corp. (“ELE”), General Protecht Group (“GPG”), and Wen-
zhou Trimone Science and Technology Electric Co. (“Tri-
mone”). The claim elements upon which my colleagues
reverse the Commission are the “detection circuit” and “load
terminals” of the ’340 patent, and the “latching means” of
the ’398 patent.
A.
The ’340 patent: “detection circuit . . .
to generate a predetermined signal”
The Commission found infringement of the ’340 patent
by the 2006 model of the Ground Fault Circuit Interrupter
(“Interrupter” or “GFCI”) of ELE, the 2003 and 2006 models
of GPG, and the 2006 model of Trimone. Claim 14 is repre-
sentative; the clause at issue is:
at least one detection circuit including a circuit
segment coupled between the line terminals and
configured to generate a predetermined signal in re-
sponse to detecting a proper wiring condition . . . .
’340 patent col.10 ll.9–12. The ALJ heard testimony of
expert witnesses for all parties, and found that “the concept
of ‘detection’ is well understood in the context of circuits. In
that regard, a circuit reacts in a particular way to a particu-
lar stimulus.” I.D. at 85 (citing testimony of Pass & Sey-
GENERAL PROTECHT GROUP v. ITC 4
mour’s expert Dr. Harman, 1 Hr’g Tr. 1036:20–1040:13, J.A.
40444–45). Extensive testimony concerned the detection
circuitry as described in the ’340 patent and as embodied in
each of the accused circuit interrupters. The ALJ found
infringement as to this element, upon the same findings and
arguments now adopted by my colleagues to contrary effect.
However, sufficient evidence to reverse these findings and
rulings has not been shown.
The ’340 patent describes miswire protection through
circuitry that repeatedly trips the Interrupter until a prede-
termined signal is provided that indicates proper wiring.
The predetermined signal is an electrical signal that cuts off
the circuit path that was causing the repeated tripping of
the device. In patent Figure 4, shown below, the detection
circuit consists of switch S1, fuse F1, and resistors R10 and
R13:
’340 Patent, Figure 4
1 Thomas Harman of the University of Houston is a
special expert to the committee of the National Electrical
Code dealing with house wiring and safety devices. J.A.
40385. Dr. Harman’s Ph.D. is in electrical engineering, and
he is a master electrician who wrote the “Guide to the
National Electrical Code.” Id. at 40385–86.
5 GENERAL PROTECHT GROUP v. ITC
When current flows through the detection circuit to the gate
of rectifier 404, the device will trip by energizing solenoid
406, which opens interrupting contacts 408. ’340 patent
col.7 ll.11–16. When power is correctly wired to the line
terminals, current passes through the detection circuit
regardless of whether the interrupting contacts 408 are
open or closed. With correct wiring, current will continue to
flow “until such time as fuse F1 clears, after which it is
possible to accomplish a resetting of the interrupting con-
tacts 408.” Id. col.7 ll.24–26. The ’340 specification explains
that the detection circuit uses power from the line terminal
to create a response, and this response is present only when
the device is properly wired. When properly wired, the
device is allowed to be reset. The embodiment shown in
Figure 1 of the ’340 patent illustrates the same principle,
where the circuit trips in response to a simulated fault that
is present until proper wiring has cleared the resistive
elements, thereby permitting resetting. See id. col.4 ll.9–67.
The experts agreed on the technology as set forth in the
patent and as embodied in the devices that the Commission
found to be infringing. In ELE’s device the reset button is
blocked until, when power is correctly wired to the line
terminals, current passes through a circuit segment that
signals a solenoid that unblocks the reset button. See J.A.
56301–09. The signal is not produced if power is incorrectly
wired. Dr. Harman explained that the portion of the ELE
circuitry configured to provide the signal when the device is
properly wired is the detection circuit of the ’340 patent, and
generates the signal that allows the device to be reset. See
Hr’g Tr. 844:13–850:6, J.A. 40396–97.
The Commission found that the ELE device indeed has
a detection circuit that generates a signal. See I.D. at 91.
“This circuit provides a predetermined signal upon proper
wiring, and this signal does not simulate a fault condition.”
Id. The presence of that signal allows ELE’s device to be
GENERAL PROTECHT GROUP v. ITC 6
reset, as described and claimed in the ’340 patent. Revers-
ing the Commission, my colleagues find that the ELE device
does not detect whether the wiring is proper and generate a
predetermined signal in response; my colleagues find that
ELE simply uses the available line voltage to allow the
device to be reset when properly wired. However, as the
Commission found, in ELE’s device the reset state is pre-
vented until power from a properly wired line terminal is
used to energize a solenoid that moves the block, requiring
detection of proper wiring. Substantial evidence supports
the Commission’s finding that the ELE device meets the
“detection circuit” and “predetermined signal” limitations of
the claims. Indeed no other finding is plausible; that is the
purpose of the device. My colleagues do not explain their
rejection of the Commission’s findings, and indeed, I can
discern no basis for such rejection.
The Commission also sustained the ALJ’s findings with
respect to the GPG devices. As GPG explained, if power is
properly connected to the line terminals, then when the
reset button is pushed a “reset solenoid” is energized that
resets the device. See GPG Br. 15–16. GPG does not dis-
pute that its Interrupters generate a predetermined signal.
GPG states in its brief that “the predetermined signal is
generated when GPG’s products are miswired,” GPG Br. 36
(citing J.A. 40969–70, testimony of GPG expert Dr.
Roberge). GPG also states that “GPG does not take issue
with the words used in the ID’s construction of ‘detection
circuit.’” GPG Br. 27. Nonetheless, my colleagues negate
the Commission’s construction. This is inappropriate, for
the Commission’s construction is not disputed, as the ex-
perts agreed.
GPG did argue non-infringement on the Commission’s
construction, contending that its GFCIs do not infringe
because one could theoretically avoid miswire protection by
the following expedient: buy a GPG GFCI (sold in the
7 GENERAL PROTECHT GROUP v. ITC
tripped state), properly wire it, reset it, and then uninstall
and miswire it. GPG argued that the claim clause “config-
ured to generate a predetermined signal in response to
detecting a proper wiring condition,” which occurs when the
line terminals are connected to a source of AC power, is not
infringed if the signal can be sent when the AC power is
connected to the load terminals. See GPG Br. 35–36. The
Commission found that this theory did not avoid infringe-
ment. I.D. at 99 & n.23 (citing z4 Techs., Inc. v. Microsoft
Corp., 507 F.3d 1340, 1350 (Fed. Cir. 2007) (“[I]nfringement
is not avoided merely because a non-infringing mode of
operation is possible.”); Golden Blount, Inc. v. Robert H.
Peterson Co., 438 F.3d 1354, 1363 (Fed. Cir. 2006) (“[I]t
matters not that the assembled device can be manipulated
into a non-infringing configuration.”)).
The witnesses explained that in GPG’s devices the reset
state is prevented until power from a properly wired line
terminal is used to energize a solenoid that resets the
device. The Commission found that “it is not possible to
close the contacts to reset the GFCI without the predeter-
mined signal.” I.D. at 97. While GPG describes the opera-
tion of its device as “inherent” miswire protection, the
Commission determined that this is not different from the
claimed detection, for the circuit generates a signal only
when power is properly connected to the line terminals. I.D.
at 97–98.
My colleagues do not discuss the support for the Com-
mission’s findings that the ELE and GPG Interrupters have
a detection circuit that generates a predetermined signal in
response to proper wiring. These systems require detection
of proper wiring and generation of a predetermined signal in
response. Instead, the court creates its own, flawed, defini-
tion of “generate,” and finds non-infringement by ELE and
GPG based on this definition. However, the definition of
“generate” was not disputed by any party before the Com-
GENERAL PROTECHT GROUP v. ITC 8
mission; thus the record is sparse and argument is nil.2 The
expert witnesses all understood the term in the same way,
and directed their testimony to their opinions as to whether
the term was infringed. Thus the ELE expert was of the
opinion that the ELE device does not generate a “predeter-
mined signal” because the ELE device does not sense a
current threshold or time threshold. However, ELE’s expert
admitted that the ELE circuit creates (i.e., generates) a
current. J.A. 40818 (“Shanghai ELE . . . simply uses the
available line voltage to create a current . . . .”). The panel
majority does not discuss this evidence.
Instead, the court creates a theory not proposed by any
party, and rules that a signal that originates from the line
terminal is not generated by the detection circuit and thus
is not “generated.” See Maj. Op. at 9 (“The identified circuit
does not generate this current; it is the current that comes
from the AC power connection.”). There is no support for
this theory. The only signal generated in response to proper
2 The panel majority at footnote 3 disputes whether
ELE raised the issue, citing ELE’s statement in its brief
that “[b]y treating the ‘predetermined signal’ as including
whatever AC power happens to arrive at a building from the
local power plant, the Commission has broadened this
limitation beyond all recognition and effectively reads it out
of the claim.” The context of this statement reveals that
ELE was concerned only with the “predetermined” nature of
the signal and whether it is used to differentiate between
correct or incorrect wiring. The sentence from ELE’s brief
quoted by the majority is preceded by the statement that
“[i]n order to find the ‘predetermined signal’ in ELE’s 2006
GFCIs, the Commission merely disregards this perspective
and disregards the teachings of the ’340 patent’s specifica-
tion about the meaning of “predetermined.” ELE Br. 42.
The majority apparently does not credit any of ELE’s argu-
ments regarding the “predetermined” nature of the signal.
In any event, the issue is not waiver of the argument, but
rather the complete lack of any disagreement among any of
the parties regarding the term “generate,” contrary to this
court’s sua sponte definition.
9 GENERAL PROTECHT GROUP v. ITC
wiring as described in the ’340 patent is “generated” in the
same way as in the accused devices, that is, the detection
circuit uses power from the properly wired line terminals to
supply a signal (claim 14) or response (claim 30) that allows
the device to be reset. That is how the Commission, and the
parties, interpreted the term. The court’s new interpreta-
tion of “generate” was not debated and is not briefed.
On the record and proceedings in the Commission, sub-
stantial evidence supports the Commission’s findings and
rulings as to this claim clause. The court’s reversal of the
Commission is unwarranted. At a minimum, this new
(incorrect) definition requires remand for the views of the
parties and the Commission.
B
The ’340 patent: “interrupting contacts . . . load ter-
minals”
Another finding on which the court improperly reverses
the Commission relates to the claim clause:
interrupting contact assembly including four sets of
interrupting contacts that are configured to provide
electrical continuity between the line terminals and
the load terminals in a reset state and configured to
interrupt the electrical continuity in tripped state
....
’340 patent col.10 ll.17–22. The Commission construed this
claim element as “four pairs of electrical contacts that can
separate from each other to interrupt the flow of electricity,”
I.D. at 89. ELE’s expert, Dr. Engel, stated that ELE’s
Interrupters “absolutely” have “four sets of interrupting
contacts under the plain meaning of that phrase.” J.A.
GENERAL PROTECHT GROUP v. ITC 10
40840. The Commission’s findings are well supported by
substantial evidence.
Neither ELE nor Trimone disputes that its devices have
four sets of interrupting contacts between the line and load.
However, the court holds that two of these contacts are not
connected to “load terminals” as required by the claim. The
’340 specification explains that the purpose of the Ground
Fault Circuit Interrupter is to remove power from the load
terminals, by interrupting the circuit from the power source.
’340 patent col.2 ll.8–10 (“Circuit interruption is typically
effected by opening a set of contacts disposed between the
source of power and the load.”). A person of ordinary skill in
this field would understand that the “interrupting contact
assembly” of the clause is configured to interrupt the conti-
nuity between the power source (the line terminals) and
load terminals such as receptacle outlets.
The ’340 patent states:
The electric circuits may typically include one or
more receptacle outlets and may further transmit
AC power to one or more electrically powered de-
vices, commonly referred to in the art as load cir-
cuits. The receptacle outlets provide power to user-
accessible loads that include a power cord and plug,
the plug being insertable into the receptacle outlet.
Col.1 ll.27-33. No one disputes that receptacle outlets are
referred to in the electrical art as “user load terminals” or
“user-accessible load terminals.” Multiple witnesses testi-
fied that “load terminals” include user-accessible load
terminals such as receptacle outlets, explaining that recep-
tacle outlets are sometimes more specifically referred to as
“user load terminals” or “user-accessible load terminals.”
Dr. Horenstein, an expert testifying on behalf of respondent
Meihao, stated that “receptacles are also referred to as user
11 GENERAL PROTECHT GROUP v. ITC
accessible load terminals,” J.A. 40938. Dr. Harman ex-
plained that “the load terminals would be the terminals for
any other devices or outlets or appliances that would be
connected to the device,” J.A. 40408; “The loads are on the
right side labeled load and outlet receptacle,” J.A. 40401.
ELE’s expert witness, Dr. Engel, likewise testified that in
ELE’s design “there are two load terminals, so this, Your
Honor, shows a wire going to a receptacle or a load terminal
available on the face of the device, and this shows a wire
going to a load terminal available on the side of the device.”
J.A. 40819. ELE does not argue that the claimed “load
terminals” do not include user load terminals such as the
receptacle outlets shown in the ’340 patent. 3
Contrary to this unanimity of experts, my colleagues
dispose of the experts with the statement that “an expert’s
subjective understanding of a patent term is irrelevant.”
However, an expert’s testimony concerning the definition of
a technological term in his field of expertise is highly rele-
vant. An objective definition of a term of electrical art is not
“subjective understanding.”
The Commission accepted the uniform extrinsic and in-
trinsic evidence, and proceeded on the premise that “user
load terminals” are a form of “load terminal.” Yet the panel
majority now reverses the Commission and rules that “load
terminals” excludes “user load terminals.” This ruling is
contrary to the patent specification and contrary to the
3 The majority at footnote 4 states that ELE indeed
“raises the load terminal issue” by stating in its brief that
the ’340 patent does not show separation of “the down-
stream load terminals from the surface (‘face’) load or recep-
tacle terminals,” ELE Br. 44. Notably absent from the ELE
briefs is any suggestion that “load terminals” do not include
receptacle outlets. Indeed, the above-quoted portion of the
ELE brief accepts that receptacles are surface load termi-
nals, as ELE’s expert conceded, consistent with the testi-
mony of other experts.
GENERAL PROTECHT GROUP v. ITC 12
entire record. The panel majority, seeking support, simply
argues that the experts were “fastidious” in referring to
“user load terminals” separately from “load terminals,” Maj.
Op. at 13, and indeed the experts differentiated the broader
general term “load terminal” from the more specific “user
load terminal” such as receptacle outlets. No one except
this court proposes that “load terminal” by definition ex-
cludes user load terminals.
The Commission discussed Trimone’s attorney argu-
ment that, despite this uncontroverted understanding and
usage, the ’340 patent claims exclude receptacle outlets from
the scope of “load terminal.” The Commission heard this
argument, and found no distinction between the meaning of
“load terminals” in this electrical technology and the “load
terminals” described and claimed in the ’340 patent. The
Commission rejected Trimone’s argument, and declined to
remove “user load terminals” from the scope of “load termi-
nals.” The Commission explained that “the testimony of
multiple witnesses confirms that outlets/receptacles have
load terminals. The fact that one would be unlikely to
miswire a GFCI by wiring AC power to the out-
lets/receptacles does not preclude them from being consid-
ered ‘load terminals’ in the context of miswiring protection.”
I.D. at 89 (citations omitted).
It is simply incorrect for this court now to hold that
“load terminals” exclude user load terminals. The Commis-
sion’s finding of infringement by the user load terminals is
supported by substantial evidence; the court’s contrary
finding is totally devoid of support. I must again dissent
from my colleagues’ refusal to apply the proper standard of
review and failure to credit the Commission’s correct rulings
and findings.
13 GENERAL PROTECHT GROUP v. ITC
C
The ’398 patent: “latching means”
ELE does not dispute that its devices embody this ele-
ment of the ’398 patent. The Commission found, applying
35 U.S.C. §112 ¶6, that GPG’s 2006 Interrupter includes
latching structure equivalent to that described in the ’398
patent. Although this finding is supported by substantial
evidence, the panel majority rejects it.
Claim 1 of the ’398 patent includes the following
clauses:
f) latching means releasably retaining said conduct-
ing member in said first position; and
g) actuating means for releasing said latching
means to permit said biasing means to move said
conducting member to said second position in re-
sponse to a predetermined fault condition in said
electrical circuit.
’398 patent col.13 ll.41–46. The “first position” is a “circuit-
making” position in which the conducting member com-
pletes the circuit in the Ground Fault Circuit Interrupter,
allowing power to be delivered from line to load. The “sec-
ond position” is the circuit-breaking position. The ’398
patent describes a mechanical latching structure wherein
the shoulder of a pin catches on a latch connected to the
conducting member, and a spring biases the latch member
and conducting member into the designated first position. If
the latch is disengaged, the spring will bias the latch mem-
ber and the conducting member into the circuit-breaking
position.
GENERAL PROTECHT GROUP v. ITC 14
The GPG 2006 Interrupter uses a permanent magnet to
hold the conducting member in the first position, against
the bias of a spring. The Commission found infringement in
terms of §112 ¶6. The Commission received evidence of the
known interchangeability of mechanical and magnetic
latches, including expert testimony that prior art patents
“speak about a magnetic latch in a GFCI,” J.A. 40524, and
that “[t]he use of a magnet as a latch is fairly common in
other devices,” id. The Commission found the fact that “at
the filing of the ’398 patent, a person of ordinary skill in the
art would have considered the magnetic latching structure
in the GPG 2006 GFCIs to be interchangeable with the
‘latching means’ recited in claim 1.” I.D. at 67. The Com-
mission explained that in these devices the mechanical and
magnetic latches work in substantially the same way, for in
both cases the force of the pin or the magnet overcomes the
biasing force of a spring to hold the conducting members in
the circuit-making position. I.D. at 66–67.
The court rejects the Commission’s finding of equiva-
lency, without discussing the evidence for or against this
finding. Instead, the court rules that there can never be
equivalence between a mechanical latch and a magnetic
latch, misciting Toro Co. v. Deere & Co., 355 F.3d 1313 (Fed.
Cir. 2004). Toro did not so hold. My colleagues remove from
its context Toro’s quotation of the argument of the defen-
dant Deere, viz. “Deere contends that this difference means
the two systems accomplish clause (e)’s function in funda-
mentally different ways.” Id. at 1324. This was not a
pronouncement of law for all mechanical-magnetic substitu-
tions. On the facts of that case, the mechanical cam-
follower that travels a slope, used in the Toro patent to lift a
valve stem, was found to operate in a substantially different
way from the magnetic solenoid used by Deere to create a
magnetic force that pulls open a liquid valve. Id. This court
in Toro affirmed the district court’s finding of non-
equivalency for that system; the court did not establish a
15 GENERAL PROTECHT GROUP v. ITC
universal law of non-equivalence for all systems and all
mechanical/magnetic facts.
Equivalence is a question of fact to be determined
“against the context of the patent, the prior art, and the
particular circumstances of the case.” Graver Tank & Mfg.
Co. v. Linde Air Prods. Co., 339 U.S. 605, 609 (1950). As
explained in Warner-Jenkinson Co. v. Hilton Davis Chemi-
cal Co., 520 U.S. 17, 36 (1997), “known interchangeability of
substitutes for an element of a patent is one of the express
objective factors noted by Graver Tank as bearing upon
whether the accused device is substantially the same as the
patented invention.” Substantial evidence supports the
Commission’s finding that GPG’s 2006 Interrupter contains
structure equivalent to the latching means described in the
’398 patent. There was no contrary evidence.
My colleagues on this panel disregard the rulings and
findings of the Commission, and render de novo rules and
findings on new theories to which the parties have had no
opportunity to respond. This is an inappropriate appellate
process.
I respectfully dissent.