from the United States International Trade Commission in
Investigation No. 337-TA-1003.
Jonathan Weinberg, King & Spalding LLP, Washington, DC,
argued for appellant. Also represented by Paul Whitfield
Hughes, McDermott, Will & Emery LLP, Washington, DC; Gary
Hnath, Bryan Nese, Mayer Brown LLP, Washington, DC.
Chen, Office of the General Counsel, United States
International Trade Commission, Washington, DC, argued for
appellee. Also represented by Dominic L. Bianchi, Wayne W.
Proshanto Mukherji, Fish & Richardson, PC, Boston, MA,
argued for intervenor. Also represented by Frank
Scherkenbach, Kurt Louis Glitzenstein, Andrew Pearson, Kevin
Su; Poongunran Muthukumaran, Aspen Aerogels, Inc.,
Wallach, Hughes, and Stoll, Circuit Judges.
Alison Hi-Tech Co. is a foreign manufacturer of aerogel
insulation products currently subject to a limited exclusion
order entered by the U.S. International Trade Commission
following an unfair competition investigation. The exclusion
order is based in part on the Commission's final
determination that Alison's products infringe U.S. Patent
No. 7, 078, 359, owned by domestic manufacturer Aspen
Aerogels, Inc. Alison appeals the Commission's final
determination that certain claims of the '359 patent are
not indefinite based on their use of the term "lofty . .
. batting." Alison also challenges the Commission's
final determination that certain claims of the '359
patent are not invalid on anticipation and obviousness
grounds. Because the written description of the '359
patent informs the meaning of "lofty . . . batting"
with reasonable certainty, we affirm the Commission on the
indefiniteness ground. And because we conclude that the
Commission's factual findings are supported by
substantial evidence, we also affirm the Commission on the
anticipation ground without reaching the subsidiary
filed a complaint with the Commission in 2016 alleging that
Alison had violated section 337 of the Tariff Act of 1930, 19
U.S.C. § 1337, by importing certain composite aerogel
insulation materials that infringe several of its patents,
including the '359 patent. In September 2017, the
administrative law judge held that Alison had violated
section 337 based, in relevant part, on her determination
that certain claims of the '359 patent were not invalid
and were infringed by Alison's importation of the accused
products. In February 2018, the Commission affirmed the
ALJ's initial determination. Relevant here, the
Commission held that claims 1, 7, and 9 of the '359
patent were not invalid and were infringed by Alison. The
Commission entered a limited exclusion order barring
importation of Alison's infringing composite aerogel
'359 patent, titled "Aerogel Composite with Fibrous
Batting," is directed to an improvement in aerogel
composite products. '359 patent col. 3 ll. 19-23.
Aerogels, first created in the 1930s, are very light
materials with excellent insulating properties. To form an
aerogel, the liquid component of a gel is replaced with a gas
via a specialized drying process that extracts the liquid
while keeping the remaining components of the gel intact. The
resulting product is highly porous and has low density, but
is also very fragile and brittle. To improve flexibility,
aerogels can be combined with fibrous materials to form an
aerogel composite. The mechanical properties of the resulting
composite will vary depending on the fibrous materials used
and how they are combined.
'359 patent specifically discloses an aerogel composite
that uses a "lofty fibrous structure," or
"lofty batting," as the fibrous material.
Id. at col. 3 ll. 19-30. The '359 patent defines
"lofty batting" as "a fibrous material that
shows the properties of bulk and some resilience (with or
without full bulk recovery)." Id. at col. 7 ll.
1-3. According to the '359 patent, the lofty batting
reinforces the aerogel in a way that maintains or improves
the thermal properties of the aerogel while providing a
"highly flexible, drapeable form." Id. at
col. 3 ll. 30-40. The '359 patent represents this as an
improvement over prior aerogel composites, which suffer from
low flexibility, low durability, and degraded thermal
performance. See id. at col. 1 l. 62-col. 3 l. 6.
claim 1 and dependent claims 7 and 9 of the '359 patent
are at issue on appeal. They recite:
1. A composite article to serve as a flexible, durable,
light-weight insulation product, said article comprising a
lofty fibrous batting sheet and a
continuous aerogel through said batting.
7. The composite article of claim 1, further comprising a
dopant. 9. The composite article of claim 7, wherein the
dopant is present in an amount of about 1 to 20% by weight of
the total weight of the composite.
Id. at col. 14 ll. 36-39, 63-64, col. 15 ll. 3-5
(emphases added to disputed claim term).
claim construction proceedings before the ALJ, Alison argued
that the claim phrase "lofty . . . batting" is
indefinite. The ALJ rejected Alison's indefiniteness
argument and adopted the '359 patent's express
definition of "lofty . . . batting" as "[a]
fibrous material that shows the properties of bulk and some
resilience (with or without full bulk recovery)."
Certain Composite Aerogel Insulation Materials &
Methods for Mfg. the Same, Inv. No. 337-TA-1003, Order
No. 35, EDIS No. 602687, App. A at 4-6 (Jan. 31, 2017)
(Claim Construction Order). In doing so, the ALJ
emphasized that the "bulk" and
"resilience" components of the "lofty . . .
batting" definition are further explained in the
specification. Id. at 4. In particular, the ALJ
pointed to the specification's disclosure that bulk is
"air" and that a lofty batting is
"sufficiently resilient" if "after compression
for a few seconds it will return to at least 70% of its
original thickness." Id. (quoting '359
patent col. 7 ll. 45- 47, 49). Yet, in construing the term,
the ALJ also declined Aspen's invitation to limit
"lofty . . . batting" to that example in the
specification: a material that is "compressible by at
least 50% of its natural thickness and is sufficiently
resilient that after compression for a few seconds it will
return to at least 70% of its original thickness."
Id. at 4-5; see also '359 patent col. 7
ll. 40-48. Alison petitioned the Commission for review of the
ALJ's initial determination. The Commission affirmed the
ALJ's construction and declined to review the ALJ's
determination regarding indefiniteness. Thus, the Commission
incorporated the ALJ's indefiniteness holding into its
final determination without modification or further comment.
proceedings before the ALJ, Alison also challenged the
validity of the asserted claims of the '359 patent in
view of U.S. Patent No. 5, 306, 555 ("Ramamurthi").
Titled "Aerogel Matrix Composites," Ramamurthi
discloses methods of manufacturing various aerogel matrix
composites that incorporate fibers. See Ramamurthi
col. 3 l. 53- col. 4 l. 38. The specification describes a
series of example ...