       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                LUCKY LITTER LLC,
                    Appellant,

                         AND

               OURPET’S COMPANY,
                   Appellant,

                           v.
     INTERNATIONAL TRADE COMMISSION,
                 Appellee,

                         AND

     APPLICA CONSUMER PRODUCTS, INC.,
                 Intervenor,

                         AND

         WATERS RESEARCH COMPANY,
                  Intervenor.
              __________________________

                   2009-1470, -1474
              __________________________

   On appeal from the United States International Trade
Commission in Investigation No. 337-TA-625.
             ___________________________
LUCKY LITTER   v. ITC                                   2


                  Decided: October 6, 2010
                ___________________________

   ERIC C. COHEN, Katten Muchin Rosenman LLP, of
Chicago, Illinois, argued for appellants Lucky Litter LLC.
With him on the brief were CAROLYN MILLER PASSEN and
JEREMY C. DANIEL.

    PAUL V. STORM, Storm LLP, of Dallas, Texas, argued
for appellant Ourpet’s Company. With him on the brief
was SARAH M. PAXSON; and V. JAMES ADDUCI II and
MICHAEL L. DOANE, Adduci, Mastriani & Schaumberg,
LLP, of Washington, DC.

    MARK B. REES, Attorney, Office of the General Coun-
sel, United States International Trade Commission, of
Washington, DC, argued for appellee. With him on the
brief were JAMES M. LYONS, General Counsel, ANDREA C.
CASSON, Assistant General Counsel for Litigation, and
MEGAN M. VALENTINE, Attorney.

    JEFFREY D. MILLS, King & Spalding LLP, of Washing-
ton, DC, argued for intervenor Applica Consumer Prod-
ucts, Inc. With him on the brief were BRUCE W. SLAYDEN
II and BRIAN C. BANNER.

    VANCE L. LIEBMAN, Funkhouser Vegosen Liebman &
Dunn Ltd., of Chicago, Illinois, for intervenor Waters
Research Company. With him on the brief were GLENN
A. RICE and ORLEY J. MOSKOVITS DESSER.
              __________________________




   Before DYK, FRIEDMAN, and MOORE, Circuit Judges.
3                                        LUCKY LITTER   v. ITC


MOORE, Circuit Judge.

     Lucky Litter LLC (Lucky Litter) and OurPet’s Com-
pany (OurPet’s) appeal from the final determination of
the International Trade Commission (Commission) that
the importation and sale of Lucky Litter’s ScoopFree® and
OurPet’s SmartScoop® self-cleaning litter boxes violated
section 337 of the Tariff Act of 1930, as amended. See 19
U.S.C. § 1337. The Commission entered limited exclusion
orders and cease-and-desist orders against Lucky Litter
and OurPet’s. See In the Matter of Certain Self-Cleaning
Litter Boxes and Components Thereof, Investigation No.
337-TA-625 (U.S.I.T.C. Apr. 28, 2009) (Commission
Decision). The Commission’s determination and orders
were based on its conclusion that the accused products
infringed claim 33 of U.S. Patent No. RE 36,847 (’847
patent) and that claim 33 was not invalid. We conclude
that the Commission erred when it read a “cat exit”
limitation into claim 33, and that without this limitation,
claim 33 would have been obvious. Intervenors Applica
Consumer Products, Inc. and Waters Research Company
(collectively, Applica) urge alternative bases for upholding
the exclusion order; however, we find these arguments to
be without merit. Therefore, we reverse the Commission’s
determination that claim 33 was not proven to be invalid
and vacate the exclusion order.

                     I.   BACKGROUND

   The ’847 patent concerns self-cleaning cat litter boxes.
The preferred embodiment is depicted in Figure 1:
LUCKY LITTER   v. ITC                                     4




The box depicted in Figure 1 uses a comb 43 to rake waste
clumps 71 out of the litter. The comb is mounted on a
shaft 41, which is driven by a motor 55. ’847 patent col.3
ll.33-34. The shaft is attached to guide wheels 52-53 on
each end. Id. col.3 l.18, 23. As the shaft turns, the guide
wheels roll along the track. Id. col.3 ll.25-27. The motor
is connected to the shaft through a gear train. Id. col.3
ll.31-35. The box has sensors (82, 84) to sense the exit of
a cat from the litter box. Id. col.4 ll.25-29. After a cat
leaves the box, there is a preset time delay to make sure
the cat does not come back into the box with unfinished
business, id. col.5 ll.29-30, after which the motor is ener-
gized, rotating the shaft and driving the comb through the
litter to dump the clumps 71 into the waste receptacle 68.
Id. col.5 ll.58-61, col.6 ll.12-26.

    Applica sued Lucky Litter and OurPet’s in the Com-
mission seeking to exclude Lucky Litter’s ScoopFree® and
OurPet’s SmartScoop® from importation into the United
States under section 337 of the Tariff Act of 1930, as
amended. See 19 U.S.C. § 1337. After construing the
disputed claim terms, the Commission determined that
5                                       LUCKY LITTER   v. ITC


the accused products infringed claim 33 of the ’847 patent
and that claim 33 was not invalid as anticipated or obvi-
ous. Commission Decision at 31-40, 45-52; see also In the
Matter of Certain Self-Cleaning Litter Boxes and Compo-
nents Thereof, Investigation No. 337-TA-625 (Dec. 1, 2008)
(ALJ Decision). The Commission further determined that
the other asserted claims of the ’847 patent were not
shown to be invalid but were not infringed. The Commis-
sion issued limited exclusion orders and cease-and-desist
orders against Lucky Litter’s and OurPet’s self-cleaning
litter boxes and components thereof. See Commission
Decision at 1. Lucky Litter and OurPet’s appeal. We
have jurisdiction under 28 U.S.C. § 1295(a)(1).

                     II. DISCUSSION

    We review the Commission’s determinations in accor-
dance with the Administrative Procedure Act, see Honey-
well Int’l, Inc. v. Int’l Trade Comm’n, 341 F.3d 1332, 1338
(Fed. Cir. 2003), and thus we review the Commission’s
factual findings for substantial evidence and its legal
conclusions de novo. 5 U.S.C. § 706(2)(A), (E).

                 A. Claim Construction

    Claim construction is a legal determination that we
review de novo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d
1448, 1455-56 (Fed. Cir. 1998) (en banc). The words of a
claim are generally given their ordinary and customary
meaning as understood by a person of ordinary skill in the
art in question at the time of the invention when read in
the context of the specification and prosecution history.
See Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir.
2005) (en banc).
LUCKY LITTER   v. ITC                                       6


    Lucky Litter argues that the Commission erroneously
construed claim 33 as having a “cat exit” limitation and
that without this added limitation, claim 33 is invalid as
anticipated or obvious. Claim 33 reads:

   33. A self-cleaning cat litter box comprising:

   a pan-shaped housing defining an upwardly open
   litter chamber to be filled to a given fill level with
   cat litter;

   a comb drive coupled to the housing;

   a comb extending between two opposed sidewalls
   and being coupled to the comb drive and movable
   between a storage position and a discharge posi-
   tion, the comb projecting down into the litter
   chamber to a level below the fill level so that the
   comb engages clumps in the litter and moves such
   clumps toward the discharge position; and

   a mode selector switch operatively connected to
   said comb drive, the switch being moveable be-
   tween a manual operation position wherein an op-
   erator causes the comb to move toward the
   discharge position and an automatic operation po-
   sition wherein the comb moves toward the dis-
   charge position automatically upon the occurrence
   of a predetermined event.

’847 patent, claim 33 (emphasis added). The Administra-
tive Law Judge (ALJ) construed the “automatic operation
position” of claim 33 as “a position of the mode selector
switch where combing is initiated in response to a cat
exit,” ALJ Decision at 48, and the Commission declined to
review this decision, Commission Decision at 5.
7                                       LUCKY LITTER   v. ITC


    The appellants argue that this construction conflicts
with the plain language of the claim, which refers to a
predetermined event, not to a cat exit. The appellants
explain that in Applica’s request for reissue, Applica
stated that claim 1 contained “recitations regarding a cat
exit sensor and a delay means which are too limiting of
the invention.” J.A. 37238-39. The appellants point out
that claim 33 was added during reissue and does not
contain the “cat exit” language of claim 1.

     The Commission responds that that the specification
distinguishes the invention over the prior art in terms of
cat exit: “The present invention provides effective im-
provement for the rake drive of the Carlisi [U.S. Patent
No. 5,048,665] device so that movement of the comb or
rake through the litter can be made responsive to entry
and exit of the cat from the litter box.” ’847 patent col.1
ll.47-50. The Commission argues that the broader plain
language interpretation of the “predetermined event”
would jeopardize the validity of claim 33 by encompassing
the periodic combing described in Carlisi. The Commis-
sion asserts that the specification emphasizes that the
litterbox is “directly responsive to the exit of a cat from
the litter box.” Id. col.1. l.62. The Commission argues
that the patent clearly disavows automatic operation on a
timed basis because the specification discloses that an
object of the invention is to provide an improved rake or
comb drive that “does not operate on a periodical basis so
that there is no substantial possibility that the comb
mechanism will carry out a cleaning operation while a cat
is present in the box.” Id. col.1 l.63-col.2 l.2.

     We conclude that the “automatic operation position”
of claim 33 must be construed in accordance with its plain
meaning. Claim 33 requires “an automatic operation
position wherein the comb moves toward the discharge
LUCKY LITTER   v. ITC                                       8


position automatically upon the occurrence of a predeter-
mined event.” On its face, the claim does not limit the
predetermined event to a cat exit. The words of a claim
are generally given their ordinary and customary mean-
ing, absent a clear indication otherwise from the specifi-
cation or prosecution history, as where the patentee acts
as his own lexicographer or clearly disavows claim scope.
Here, the specification does not support limiting the term
to a cat exit. This is not a case where the patentee acted
as his own lexicographer and defined the term “predeter-
mined event”; in fact, the words “predetermined event”
appear nowhere in the specification. Thus, the specifica-
tion does not clearly indicate the patentee’s intent to
impart a unique meaning to “predetermined event.” See
Helmsderfer v. Brobrick Washroom Equip., Inc., 527 F.3d
1379, 1381 (Fed. Cir. 2008) (“A patentee may act as its
own lexicographer and assign to a term a unique defini-
tion that is different from its ordinary and customary
meaning; however, a patentee must clearly express that
intent in the written description.”). In addition, nothing
in the specification clearly and unmistakably disavows
predetermined events other than cat exit. The Commis-
sion asserted that the specification disavowed periodic
cleaning, such that claim 33 should require a cat exit, by
the statement: “Another object of the invention is to
provide a new and improved comb drive for a self-cleaning
cat litter box that is capable of remaining in[] operation
for extended periods of time without attention from the
cat owner and that does not operate on a periodical basis
so that there is no substantial possibility that the comb
mechanism will carry out a cleaning operation while a cat
is present in the box.” ’847 patent col.1 l.63-col.2 l.2. This
statement falls short of the type of clear and unmistak-
able disavowal required to limit the ordinary meaning of a
claim term.
9                                        LUCKY LITTER   v. ITC


    Moreover, the prosecution history shows that the pat-
entee viewed his invention more broadly and sought
reissue to remove “cat exit sensor and delay means which
are too limiting of the invention.” J.A. 37238. Although
the original claim set included claims requiring “a cat exit
sensor” for actuating the self-cleaning operation after
“sensing exit of a cat from the litter chamber,” claim 33,
which was added during reissue, does not contain this
limitation. Claim 33 makes no mention of a cat exiting
the litter box. We will not read in a cat exit limitation
into this claim. In short, nothing in the claim language,
specification, or prosecution history requires a cat exit
limitation. The “automatic operation position” of claim 33
requires only that the “comb move[] toward the discharge
position automatically upon the occurrence of a predeter-
mined event.” ’847 patent, claim 33.

                        B. Validity

    “Obviousness is a question of law based on underlying
factual inquiries, and thus we review the Commission’s
ultimate determination de novo and factual determina-
tions for substantial evidence.” Vizio, Inc. v. Int’l Trade
Comm’n, 605 F.3d 1330, 1342 (Fed. Cir. 2010).

    Lucky Litter and OurPet’s argue that without the “cat
exit” limitation, claim 33 is anticipated or rendered obvi-
ous by Carlisi. The Commission determined that the
appellants failed to establish that claim 33 was invalid;
however, this determination was based in part on its
conclusion that claim 33 required a cat exit. The Com-
mission found that “it is not apparent that Carlisi dis-
closes a switch for selecting between a manual operation
and an automatic operation,” as required by claim 33.
Commission Decision at 45; see ’847 patent, claim 33
(requiring “a mode selector switch . . . moveable between
LUCKY LITTER   v. ITC                                       10


a manual operation position . . . and an automatic opera-
tion position”).

     Lucky Litter and OurPet’s contend that Carlisi dis-
closes a mode selector switch and thus anticipates claim
33. Carlisi discloses a self-cleaning litter box with a
timing device that periodically rakes the litter to remove
solid waste. Carlisi discloses an on/off switch “for actua-
tion of the cleaning process.” Carlisi col.3 l.50. Carlisi
also discloses that its litter box can be operated in “a
manual fashion, where the rake member is moved manu-
ally” or in response to predetermined conditions or a
timer mechanism (i.e., automatic operation). Id. col.3
ll.19-20, 51-54. Lucky Litter asserts that the on/off switch
is the mode selector switch. What a particular reference
discloses is a question of fact. Transocean Offshore Deep-
water Drilling, Inc. v. Maersk Contractors USA, Inc., --
F.3d --, 2010 WL 3257312, *3 (Fed. Cir. Aug. 18, 2010). It
is not at all clear from Carlisi that its on/off switch is used
to select between manual and automatic modes. Thus,
the Commission’s finding that Carlisi does not disclose a
mode selector switch is supported by substantial evidence.

    The appellants also argue that claim 33 is invalid be-
cause converting Carlisi’s on/off switch to a mode selector
switch would have been obvious to one of ordinary skill in
the art. We agree that even if Carlisi does not precisely
disclose a mode selector switch, modifying Carlisi’s litter
box to include such a switch would have been trivial to
one of ordinary skill in the art. Indeed, if a litter box has
both a manual operation mode and an automatic opera-
tion mode, it is unclear how one would select between
these two modes if not by a switch. The Commission
determined that one of ordinary skill in the art would
have had knowledge of switch hardware, circuitry, control
logic, microcontrollers, and computer programming. See
11                                       LUCKY LITTER   v. ITC


ALJ Decision at 78. Thus, it would have been obvious to
one of ordinary skill in the art to add a switch to Carlisi’s
litter box to move the box between manual and automatic
modes. Accordingly, we conclude that claim 33 would
have been obvious.

    Because we conclude that claim 33 is obvious in view
of Carlisi and the general knowledge of those of ordinary
skill in the art about switches, we do not address the
appellants’ additional bases for obviousness.

    Applica urges alternative bases to support a violation
of section 337 and to uphold the exclusion orders and
cease-and-desist orders. Applica asserts that the Com-
mission erred when construing terms in other asserted
claims of the ’847 patent, and that under Applica’s pro-
posed constructions, the accused litter boxes infringe
these other claims. 1 We find these arguments to be
without merit. We see no error in the Commission’s
construction of the disputed terms in these additional
claims, and we conclude that these other claims do not
establish a violation under 19 U.S.C. § 1337.

                       CONCLUSION

    For the foregoing reasons, we reverse the Commis-
sion’s determination of a violation under section 337 of
the Tariff Act of 1930, as amended (see 19 U.S.C. § 1337),
and vacate the corresponding exclusion orders and cease-
and-desist orders.

              REVERSED AND VACATED

     1 Specifically, Applica argues that Lucky Litter’s
ScoopFree® litter box infringes claims 27, 41, and 42
under its proposed constructions and OurPet’s
SmartScoop® litter box infringes claims 24, 25, 31, and 31.




2009-1470, -1474             11
