Case: 20-2322 Document: 40 Page: 1 Filed: 08/19/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CAMPBELL SOUP COMPANY, CAMPBELL SALES
COMPANY, TRINITY MANUFACTURING, LLC,
Appellants
v.
GAMON PLUS, INC.,
Appellee
______________________
2020-2322
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2017-
00087.
______________________
Decided: August 19, 2021
______________________
TRACY ZURZOLO QUINN, Holland & Knight LLP, Phila-
delphia, PA, argued for all appellants. Appellants Camp-
bell Soup Company, Campbell Sales Company also
represented by STEVEN E. JEDLINSKI, Chicago, IL.
MARTIN B. PAVANE, The Davis Firm, Longview, TX, for
appellant Trinity Manufacturing, LLC.
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2 CAMPBELL SOUP CO. v. GAMON PLUS, INC.
ANDREW L. TIAJOLOFF, Tiajoloff & Kelly LLP, New
York, NY, argued for appellee.
______________________
Before MOORE, Chief Judge, PROST and STOLL, Circuit
Judges.
STOLL, Circuit Judge.
This is the second appeal from a final written decision
of the Patent Trial and Appeal Board in an inter partes re-
view of
U.S. Patent No. 8,827,111. On remand to the Board
following the first appeal, Campbell Soup Company, Camp-
bell Sales Company, and Trinity Manufacturing, LLC (col-
lectively, “Campbell”) and patent owner Gamon Plus, Inc.
stipulated to a single asserted ground of obviousness chal-
lenging only claims 17, 20, 25, and 26. The Board held that
Campbell failed to establish by a preponderance of the evi-
dence that the challenged claims were unpatentable. Be-
cause we adopt the Board’s construction of the dispositive
claim limitation “offset rearwardly,” we affirm.
BACKGROUND
I
The ’111 patent is directed to a multiple-chute gravity-
feed dispenser for storing and dispensing cylindrical ob-
jects (like soup cans). ’111 patent col. 1 ll. 15–18. The spec-
ification explains that gravity-feed dispensers have long
been known, but that traditional dispensers have a number
of disadvantages. Most importantly for purposes of this ap-
peal, prior art dispensers do not allow customers to easily
return unwanted product.
Id. at col. 1 ll. 44–45. The spec-
ification explains that, “[i]f a customer removes a product
and then decides not to purchase [that product], there is
nowhere for the customer to replace the product in the
gravity feed device” because “[t]he row of product is too
heavy for the customer to push back in order to reinsert the
unwanted product.”
Id. at col. 1 ll. 45–50. The specification
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CAMPBELL SOUP CO. v. GAMON PLUS, INC. 3
explains that the invention overcomes this problem by
providing “a compact, easy to assemble, easy to load and
reload multi-chute gravity feed dispenser having an inte-
grated display.”
Id. at col. 1 ll. 52–54.
Figure 3A of the ’111 patent depicts a perspective view
of one embodiment of the dispenser:
Id. Fig. 3A. The specification explains that “panel 10
includes at least one set of rails 20” which “define a plural-
ity of chutes 22, 24 . . . .”
Id. at col. 4 ll. 19–22. “The chutes
22, 24 are defined between adjacent pairs of panels 10 and
are of a width slightly greater than the width of products
90 [(e.g., soup cans)] and which allow the products to be
stored and dispensed therefrom.”
Id. at col. 5 ll. 13–17.
Figure 6A shows a side view of an embodiment of the
invention with one panel removed:
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4 CAMPBELL SOUP CO. v. GAMON PLUS, INC.
Id. Fig. 6A. The specification explains that the cans
are “loaded into the chutes 22, 24.”
Id. at col. 6 ll. 52–53.
“When the supply of product 90 has been sufficiently de-
pleted . . . , new product 92 must be added.”
Id. at col. 7
ll. 5–7.
The specification discloses that an “advantage of the
present invention is the return area or replace stall 110[,]
which is defined between the first and second stops 30 and
34 and a cradle member or ear 112 formed on the panel 10.”
Id. at col. 7 ll. 49–52. The specification explains that “first
stop 30 is located towards the rear of panel 10 in compari-
son to second stop 34,” and the distance between the dis-
pensing ends of chutes 22, 24 “is slightly greater than the
diameter of a product[] . . . .”
Id. at col. 7 l. 64–col. 8 l. 4.
Continuing, the specification states that the “replace stall
110 is further defined as an area in which a product 90 may
be replaced if the consumer decides not to purchase.”
Id.
at col. 7 ll. 52–54. Thus, if a product needs to be returned
to the dispenser display, “the replace stall is available for
the consumer rather than the tedious and difficult chore of
attempting to [force] the product 90 backwards in the dis-
penser display while replacing the unwanted product 90.”
Id. at col. 8 ll. 4–8.
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CAMPBELL SOUP CO. v. GAMON PLUS, INC. 5
For example, in Figure 6A, “a consumer has already re-
placed a product 90 which was not purchased.”
Id. at col. 7
ll. 55–56. Thus, the “next purchaser interested in the prod-
uct 90 will then intuitively remove the product 90 from the
replace stall 110 first as it is most easily removed.”
Id.
at col. 7 ll. 56–59. The specification touts this as “a signif-
icant advantage over the prior art.”
Id. at col. 8 ll. 8–9.
Claim 17 of the ’111 patent is the only independent
claim at issue in this appeal. Claim 17 reads as follows,
with emphasis added to highlight the disputed “offset rear-
wardly” claim limitation:
17. A display rack comprising:
a plurality of generally cylindrical products all hav-
ing substantially equal diameters;
first and second product support structures defin-
ing respectively first and second chutes configured
for the products to pass therethrough, each chute
having a respective forward-facing product loading
opening in a generally vertically disposed forward
side of the display rack and configured to receive
the products loaded into the chutes through the for-
ward side, and a respective dispensing opening be-
low the product loading opening such that the
cylindrical products when placed in the product
loading opening proceed by force of gravity through
the associated chute to the dispensing opening;
the loading and dispensing openings of the second
chute being situated between the loading and dis-
pensing openings of the first chute;
a door supported for movement between a substan-
tially vertical closed position wherein said door co-
vers the product loading openings of both of the
chutes and an open position wherein the door does
not cover the product loading openings and the cy-
lindrical products can be loaded into the chutes,
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6 CAMPBELL SOUP CO. v. GAMON PLUS, INC.
said door in said closed position having a forwardly
disposed face capable of holding a product label or
advertising;
wherein the chutes each have a stop structure sup-
ported adjacent the respective dispensing opening
and blocking movement of the products in the
chute beyond said stop structure such that the
products must be elevated above the stop structure
to be removed from the dispensing opening of the
chute; and
wherein the stop structure of the second chute is
below a portion of the second product support
structure adjacent the loading opening of the sec-
ond chute and stops the products in the second
chute rearward of the loading opening of the second
chute, said second chute having a clearance space
above the stop structure thereof such that a for-
wardmost one of the products resting thereagainst
can be elevated by a user above the stop structure
and removed from the second chute; and
the stop structure of said second chute being dis-
posed above the dispensing opening of said first
chute a vertical distance and offset rearwardly from
the stop structure of said first chute a horizontal
distance greater than the diameter of the products
such that a forwardmost product of the products in
the first chute can only be properly removed from
the first chute, by lifting said forwardmost product
up to a level wherein the forwardmost product is at
least in part horizontally forward of the dispensing
opening of the second chute.
Id. at col. 17 l. 54–col. 18 l. 36 (emphases added).
II
Campbell filed an IPR petition challenging claims 1–35
of the ’111 patent relying on nine grounds of
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CAMPBELL SOUP CO. v. GAMON PLUS, INC. 7
unpatentability. 1 The Board instituted review of only
claims 1–16, 27, 28, and 32–35 on just three of those
grounds. Campbell Soup Co. v. Gamon Plus, Inc.,
No. IPR2017-00087, Paper 12, at 52 (P.T.A.B. Apr. 21,
2017) (Institution Decision). Gamon filed a motion to dis-
claim claims 1–16, which the Board granted. In a final
written decision, the Board determined that Campbell had
not established, by a preponderance of the evidence, that
claims 27, 28, and 32–35 of the ’111 patent were unpatent-
able as obvious. Campbell Soup Co. v. Gamon Plus, Inc.,
No. IPR2017-00087,
2018 WL 2084933, at *27 (P.T.A.B.
May 2, 2018) (Final Written Decision I).
On appeal, we affirmed the Board’s determination that
claims 27, 28, and 32–35 were not unpatentable over the
instituted grounds. Campbell Soup Co. v. Gamon Plus,
Inc., 787 F. App’x 731, 739 (Fed. Cir. 2019). Nonetheless,
in light of SAS Institute v. Iancu,
138 S. Ct. 1348 (2018),
we remanded for the Board to consider whether claims
17–35 would have been obvious in view of the non-insti-
tuted grounds. Campbell Soup, 787 F. App’x at 739–40.
On remand, the parties stipulated to a single asserted
ground of obviousness challenging only claims 17, 20, 25,
and 26. The parties disagreed on the construction of the
“offset rearwardly” phrase found in each of these claims.
Campbell Soup Co. v. Gamon Plus, Inc., No. IPR2017-
00087,
2020 WL 4236884, at *7 (P.T.A.B. July 23, 2020)
(Final Written Decision II). Campbell asserted that “at
least a portion of the stop structure of the second chute is
offset by a distance greater than the diameter of the cylin-
drical products[] from at least a portion of the stop struc-
ture of the first chute.”
Id. at *9 (alteration in original)
1 In fact, the Board identified eighteen unique
grounds because many of Campbell’s nine numbered
grounds included several alternative combinations of refer-
ences.
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8 CAMPBELL SOUP CO. v. GAMON PLUS, INC.
(citations omitted). For its part, Gamon urged the Board
to construe the phrase “a horizontal distance” to mean the
“horizontal space between [the stop structures].”
Id. at *7
(quoting Institution Decision at 19–20).
The Board agreed with Gamon and determined that
the phrase should be understood according to its plain and
ordinary meaning, i.e., that “the horizontal distance recited
in this limitation is measured from the end of the first stop
structure to the beginning of the second stop structure, as
that is the horizontal distance by which the structures are
offset.” Final Written Decision II,
2020 WL 4236884,
at *11. Relying on the plain claim language, the Board rea-
soned that “the most reasonable interpretation of one
structure being ‘offset rearwardly from’ another structure
is that the offset, i.e., the distance between the structures
(their separation), is measured from the rear of the first
stop structure to the front of the second stop structure.”
Id.
at *9.
The Board also rejected Campbell’s claim differentia-
tion argument. Campbell relied on dependent claim 18,
which recites that “the horizontal distance that the stop
structure of the second chute is offset rearwardly from the
stop structure of the first chute is sufficient that one of the
products removed by a user from the rack can be replaced
on the rack supported with the replaced product resting di-
rectly on a rearward portion of said forwardmost product
in the first chute.” ’111 patent col. 18 ll. 37–43. According
to Campbell, because dependent claim 18 added the re-
quirement that the horizontal distance between the end of
the first stop structure and the beginning of the second stop
structure must be greater than the diameter of the prod-
ucts, independent claim 17 should be read more broadly.
The Board was unpersuaded, determining that claim 18
places additional limits on claim 17 and that, even if the
claims did have the same claim scope, such a result was
merely due to poor claim drafting.
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CAMPBELL SOUP CO. v. GAMON PLUS, INC. 9
After construing the claim term, the Board determined
that Campbell failed to show that the prior art taught the
“offset rearwardly” limitation found in all of the claims at
issue. Specifically, the Board found that the prior art failed
to disclose a horizontal distance between the end of the first
stop structure and the beginning of the second stop struc-
ture that was greater than the diameter of the can.
Campbell appeals. We have jurisdiction pursuant to
28 U.S.C.§ 1295(a)(4)(A).
DISCUSSION
On appeal, Campbell challenges the Board’s construc-
tion of the claim term “offset rearwardly.” We review the
Board’s claim construction de novo where, as here, the
Board relied only on evidence intrinsic to the patent. Teva
Pharms. USA, Inc. v. Sandoz, Inc.,
574 U.S. 318, 331
(2015); see also Trs. of Columbia Univ. v. Symantec Corp.,
811 F.3d 1359, 1362 (Fed. Cir. 2016) (“The construction of
claim terms based on the claim language, the specification,
and the prosecution history are legal determinations.”).
We adopt the Board’s construction measuring the
claimed offset as the space between the stop structures.
We find particular support for this construction in the pa-
tent specification. The specification explains that an “ad-
vantage of the present invention is the return area or
replace stall 110 which is defined between the first and sec-
ond stops 30 and 34 and a cradle member or ear 112 formed
on the panel 10.” ’111 patent col. 7 ll. 49–52 (emphases
added). We have previously held similar statements in the
specification, such as “the present invention includes,” “the
present invention is,” and “all embodiments of the present
invention are,” to be clear and unmistakable statements
limiting the scope of the claims. Luminara Worldwide,
LLC v. Liown Elecs. Co.,
814 F.3d 1343, 1353 (Fed. Cir.
2016) (collecting cases). In Luminara, we explained that
where a patentee describes the features of “the present in-
vention,” he “implicitly alerts the reader that ‘this
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10 CAMPBELL SOUP CO. v. GAMON PLUS, INC.
description limits the scope of the invention.’”
Id. (quoting
Regents of the Univ. of Minn. v. AGA Med. Corp.,
717 F.3d
929, 936 (Fed. Cir. 2013)). We further held that by teach-
ing that the present invention solved a particular problem
in the prior art (imitating a “real flame”) with a specific
feature (“chaotic movements”), the patentee disclaimed de-
vices that failed to include that specific feature (e.g., by us-
ing “rhythmic or metronomic patterns”).
Id. at 1353–54.
Here, in addition to indicating that an advantage of
“the present invention” is the return area, the specification
repeatedly emphasizes the importance of the return area
to the invention and defines the return area as the distance
between the first and second stops that is slightly greater
than the diameter of the can. In particular, the detailed
description explains that an advantage of the present in-
vention is that it has a return area. See ’111 patent col. 7
ll. 49–52; see also
id. at col. 1 ll. 44–45. It goes on to explain
that the distance between the dispensing ends of the first
chute and the second chute “is slightly greater than the di-
ameter of a products 90 unit.”
Id. at col. 7 l. 64–col. 8 l. 4.
In this way, if a “product is then returned to the dispenser
display, the replace stall is available for the consumer ra-
ther than the tedious and difficult chore of attempting to
[force] the product 90 backwards in the dispenser display
while replacing the unwanted product 90.”
Id. at col. 8
ll. 4–8. Finally, the specification states that “[t]his repre-
sents a significant advantage over the prior art.”
Id.
at col. 8 ll. 8–9. Given the clear and unambiguous state-
ments in the specification, we conclude that the Board did
not err in its claim construction. Indeed, were the claims
interpreted as Campbell urges, the claims would cover dis-
penser displays that lack the return area described as part
of “the present invention” and touted as advantageous over
the prior art.
We are unpersuaded by Campbell’s assertion that ref-
erence to “the present invention” in this case does not
amount to disavowal. See Oral Arg. at 22:07–23:58,
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CAMPBELL SOUP CO. v. GAMON PLUS, INC. 11
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20-
2322_06072021.mp3. We have held that use of the phrase
“present invention” did not amount to disavowal, but only
when the intrinsic record is inconsistent with the dis-
claimer.
For instance, in Continental Circuits LLC v. Intel Cor-
poration, we determined that reference to “the present in-
vention” did not amount to disavowal where the phrase
described only “one way to carry out the present invention”
and where “the specification d[id] not uniformly require
[the limiting feature].”
915 F.3d 788, 798 (Fed. Cir. 2019)
(citing Absolute Software, Inc. v. Stealth Signal, Inc.,
659 F.3d 1121, 1136–37 (Fed. Cir. 2011)). Likewise, in Ab-
solute Software, we determined that reciting “the present
invention” did not amount to disavowal where the specifi-
cation did not uniformly require the limiting feature.
659 F.3d at 1136–37. There, the specification made clear
that the features were merely “optional features of the ‘pre-
sent invention.’”
Id. at 1137. Thus, we explained that “the
specification use[d] ‘present invention’ in a way that ex-
pressly contradict[ed] earlier references to ‘present inven-
tion’ . . . .”
Id. Finally, in Rambus Inc. v. Infineon
Technologies AG, we determined that reference in the spec-
ification to “the present invention” did not limit a “bus” to
a “multiplexing bus.”
318 F.3d 1081, 1094–95 (Fed. Cir.
2003). There, “the prosecution history show[ed] that a mul-
tiplexing bus [was] only one of many inventions disclosed
in the [patent] application.”
Id. Indeed, during prosecu-
tion, the Examiner issued a restriction requirement be-
tween claims directed to a “multiplexing bus group” and a
“latency invention group,” with the patent applicant elect-
ing to prosecute the latter group.
Id. at 1095. Accordingly,
we determined that the prosecution history showed that
the invention of the patent at issue was not limited to a
multiplexing bus.
Id.
Unlike in Continental Circuits, Absolute Software, and
Rambus, we see nothing in the intrinsic record that
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12 CAMPBELL SOUP CO. v. GAMON PLUS, INC.
indicates that the return area is not uniformly required.
Indeed, the opposite is true. The specification ascribes sig-
nificant weight to the advantages of the return area. Fur-
ther, we do not see anywhere in the specification or the
prosecution history that contemplates an embodiment
without a return area. Accordingly, because the return
area is described in the specification as part of “the present
invention” itself, we conclude that the claims are not enti-
tled to a scope broader than that embodiment. See Ed-
wards Lifesciences LLC v. Cook Inc.,
582 F.3d 1322, 1330
(Fed. Cir. 2009) (“[W]hen the preferred embodiment is de-
scribed in the specification as the invention itself, the
claims are not necessarily entitled to a scope broader than
that embodiment.” (quoting Chimie v. PPG Indus., Inc.,
402 F.3d 1371, 1379 (Fed. Cir. 2005))).
Campbell’s reliance on claim differentiation and de-
pendent claim 18 is also unavailing. The doctrine of claim
differentiation “is ‘not a hard and fast rule[,]’” Regents of
Univ. of Cal. v. Dakocytomation Cal., Inc.,
517 F.3d 1364,
1375 (Fed. Cir. 2008) (quoting Seachange Int’l, Inc.
v. C-COR, Inc.,
413 F.3d 1361, 1369 (Fed. Cir. 2005)), and
“does not serve to broaden claims beyond their meaning in
light of the specification[,]” Intell. Ventures I LLC
v. Motorola Mobility LLC,
870 F.3d 1320, 1326 (Fed. Cir.
2017) (quoting Toro Co. v. White Consol. Indus., Inc.,
199 F.3d 1295, 1302 (Fed. Cir. 1999)). When faced with
clear and unambiguous language in the specification and a
claim differentiation argument, the specification must pre-
vail. InterDigital Commc’ns, LLC v. Int’l Trade Comm’n,
690 F.3d 1318, 1324 (Fed. Cir. 2012) (“[T]he doctrine of
claim differentiation . . . can be overcome by strong con-
trary evidence such as definitional language in the patent
or a clear disavowal of claim scope.”).
Campbell does not challenge the Board’s obviousness
determination under the Board’s construction of the term
“offset rearwardly.” Thus, because we adopt the Board’s
construction of that term, we affirm.
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CAMPBELL SOUP CO. v. GAMON PLUS, INC. 13
CONCLUSION
We have considered the parties’ remaining arguments,
but we do not find them persuasive. For the foregoing rea-
sons, we adopt the Board’s construction and affirm the
Board’s final written decision.
AFFIRMED
