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In re Aqua Products, Inc.

United States Court of Appeals, Federal Circuit

May 25, 2016

IN RE: AQUA PRODUCTS, INC., Appellant

          Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. IPR2013-00159.

         JAMES R. BARNEY, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, argued for appellant. Also represented by TIMOTHY P. MCANULTY, DAVID MROZ; ANTHONY A. COPPOLA, ANTHONY J. DIFILIPPI, JEFFREY A. SCHWAB, Abelman Frayne & Schwab, New York, NY.

         MEREDITH HOPE SCHOENFELD, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, argued for intervenor Michelle K. Lee. Also represented by NATHAN K. KELLEY, FARHEENA YASMEEN RASHEED, SCOTT WEIDENFELLER.

         Before PROST, Chief Judge, REYNA, Circuit Judge, and STARK, Chief District Judge[1].

          OPINION

          [118 U.S.P.Q.2d 1777] Reyna, Circuit Judge.

         Aqua Products, Inc. (" Aqua" ) appeals from the final written decision of the Patent Trial and Appeal Board (" Board" ) in an inter partes review (" IPR" ) of U.S. Patent No. 8,273,183 (" '183 patent" ). The Board denied Aqua's motion to substitute claims 22-24. Aqua challenges the Board's amendment procedures, which require the patentee to demonstrate that the amended claims would be patentable over the art of record. We affirm.

         Background

         A. Patented Technology

         The '183 patent concerns automated swimming pool cleaners, which are devices used to filter water and scrub pool surfaces. Such cleaners typically propel themselves about a swimming pool using motor-driven wheels, water jets, suction, or some combination thereof. See '183 patent col. 1 ll. 30-48. According to the '183 specification, propelling a cleaner using motor-driven wheels enables the cleaner to move in a controlled pattern, but the technique can be expensive because it requires equipping the cleaner with a drive motor and integrated circuitry. See id. col. 2 ll. 47-56. Cleaners that use suction or water jets do not require a drive motor, but they traditionally move in erratic rather than controlled patterns. Id. col. 2 ll. 57-61.

         The '183 patent discloses an automated swimming pool cleaner that uses " an angled jet drive propulsion system" to move in a controlled pattern. Id. col. 1 ll. 1-4, col. 3 ll. 15-20. Rather than using a motor to drive wheels, the disclosed cleaner shoots filtered water backwards at an angle to create both a forward force that propels the cleaner and a normal force that keeps the cleaner's wheels in contact with the pool floor. Id. col. 4 ll. 13-25, 46-49. As shown in Figure 9, the cleaner draws [118 U.S.P.Q.2d 1778] pool water through a bottom opening, filters the water, and shoots the filtered water backwards from elbow 120R or 120L at an angle a so as to create the forward and normal forces. Id. col. 4 ll. 46-51, col. 10 ll. 47-51.

         '183 Patent, Figure 9.

         B. Board Proceedings

         Zodiac Pool Systems (" Zodiac" ) petitioned the Board for IPR of claims 1-14, 16, and 19-21 of the '183 patent. Among the references Zodiac cited were U.S. Patent Nos. 3,936,899 (" Henkin" ) and 3,321,787 (" Myers" ). Henkin discloses a pool cleaner that moves randomly, in part by shooting a water jet from an adjustable nozzle that can be angled " to yield both a downward thrust component (i.e., normal to the vessel surface) for providing traction and a forward component which aides in propelling the car." Henkin at col. 5 ll. 19-22. Unlike the cleaner of the '183 patent, Henkin's cleaner uses three wheels rather than four and moves along a " random" rather than controlled path. Id. at Abstract. Henkin's jet is also powered by an external rather than an internal pump, and it shoots unfiltered rather than filtered water. Id. col. 5 ll. 15-19. Myers discloses a prior art cleaner that uses an internal pump to create a filtered water jet for erratic movement. Myers at col. 1 ll. 63-65 (" electric motor" ), col. 2 ll. 22-33 (describing an internal filter), col. 3 ll. 6-12 (" water exiting from the unit and into the pool will provide a jet force to move the unit" ).

         The Board instituted trial on all the challenged claims except claims 10-12. Aqua moved to substitute new claims 22-24, which amended claims 1, 8, and 20 to additionally require that (1) the jet creates a downward vector force rear of the front wheels (the " vector limitation" ), and (2) the wheels control the directional movement of the cleaner (the " directional movement limitation" ). Substitute claim 23 also added that the cleaner has four wheels (the " four wheel limitation" ), and ...


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