       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

            SNAP-ON INCORPORATED,
                   Appellant

                           v.

 MILWAUKEE ELECTRIC TOOL CORPORATION,
  METCO BATTERY TECHNOLOGIES, LLC, TTI
 (MACAO COMMERCIAL OFFSHORE) LTD., FKA
  AC (MACAO COMMERCIAL OFFSHORE) LTD.,
      TECHTRONIC INDUSTRIES CO. LTD.,
                   Appellees
            ______________________

2017-1305, 2017-1306, 2017-1307, 2017-1330, 2017-1331,
                      2017-1332
               ______________________

   Appeals from the United States Patent and Trade-
mark Office, Patent Trial and Appeal Board in Nos.
IPR2015-01164,      IPR2015-01165,     IPR2015-01166,
IPR2015-01242,      IPR2015-01243,     IPR2015-01244,
IPR2016-00343, IPR2016-00344, IPR2016-00345.
                ______________________

              Decided: February 16, 2018
               ______________________

   AMOL A. PARIKH, McDermott Will & Emery LLP,
Chicago, IL, argued for appellant. Also represented by
JOSEPH H. PAQUIN, JR.; PAUL DEVINSKY, Washington, DC.
2            SNAP-ON INC.   v. MILWAUKEE ELECTRIC TOOL CORP.




   JASON C. WHITE, Morgan, Lewis & Bockius LLP,
Chicago, IL, argued for appellees. Also represented by
SCOTT D. SHERWIN; DION MICHAEL BREGMAN, Palo Alto,
CA; JULIE S. GOLDEMBERG, Philadelphia, PA; WILLIAM R.
PETERSON, Houston, TX.
                ______________________

    Before REYNA, TARANTO, and CHEN, Circuit Judges.
CHEN, Circuit Judge.
    Snap-on Incorporated (Snap-on) appeals from the fi-
nal written decisions of the Patent Trial and Appeal
Board (Board) in the above-captioned inter partes review
proceedings (IPRs) that found certain claims of three of
Appellees’ patents to be nonobvious over prior art combi-
nations argued by Snap-on. 1 Appellees’ patents claim
battery packs comprising a plurality of battery cells. The
parties dispute, inter alia, the proper construction of a
claim term that appears in substantially identical form in
each of the challenged claims: “the battery cells being
capable of producing an average discharge current greater
than or equal to approximately 20 amps” (20-Amp Limita-
tion). See, e.g., J.A. 268, ’290 patent col. 12 ll. 18–22. 2




    1    In particular, the Board found the following
claims to be nonobvious over Snap-on’s prior art combina-
tions: claims 1–11 of U.S. Patent No. 7,554,290; claims 1–
13 of U.S. Patent No. 7,994,173; and claims 1–19 of U.S.
Patent No. 7,999,510 (collectively, “challenged claims”).
     2   All citations to the joint appendix and briefs are to
filings submitted in case no. 16-2658, which previously
served as the lead case in this consolidated appeal until
the appellants in that case settled with Appellees and the
case was dismissed shortly before oral argument.
SNAP-ON INC.   v. MILWAUKEE ELECTRIC TOOL CORP.              3



    The Board construed the 20-Amp Limitation to mean
“the battery cells, when configured together in a battery
pack, are capable of producing reasonably close to 20
amps of discharge current or greater over the course of
delivering their entire rated capacity.” See, e.g., J.A. 410. 3
This was the construction adopted by the United States
District Court for the Eastern District of Wisconsin in
prior litigation involving Appellees’ patents. See Milwau-
kee Elec. Tool Corp. v. Hitachi Koki Co., 2012 WL
10161527, No. 09-C-948, at *3–4 (E.D. Wis. Dec. 11,
2012). The Board endorsed the district court’s analysis in
adopting the claim construction. See, e.g., J.A. 441.
     Snap-on argues that the Board erred by including
“over the course of delivering their entire rated capacity”
in the construction because, according to Snap-on, this
language includes “concepts found nowhere in the
[c]hallenged [p]atents.” Snap-on Reply Br. 3. However,
the Board adopted the district court’s conclusion that “the
capacity of a battery is normally measured by discharging
at a constant current until the battery has reached its
terminal voltage.”      Milwaukee Elec. Tool, 2012 WL
10161527, at *4. This conclusion is supported by a dic-
tionary definition of “rated capacity,” which is defined as
“[t]he manufacturer’s statement of the number of ampere-
hours or watt-hours that can be delivered by a fully
charged battery at a specific discharge rate and electro-
lyte temperature, to a given end-of-discharge voltage.” Id.
(quoting IEEE 100: The Authoritative Dictionary of IEEE
Standard Terms 920 (7th ed. 2000)). Nothing in the
specifications or prosecution histories of the challenged
patents displaces or undermines the idea that a battery
pack’s capability is measured over its entire rated capaci-



    3    Regarding the issue of claim construction, the
Board’s analyses and the parties’ arguments are substan-
tially the same for each of the IPRs.
4            SNAP-ON INC.   v. MILWAUKEE ELECTRIC TOOL CORP.



ty. Because the record supports this notion, we reject
Snap-on’s argument on this issue.
    Snap-on also argues that the Board erred in “entirely
read[ing] out” the term “average” in its construction.
Snap-on Open. Br. 33. We agree. As a general matter, we
construe a claim term to take on its plain and ordinary
meaning to one of skill in the art when read in the context
of the specification and prosecution history. Wasica Fin.
GmbH v. Cont’l Auto. Sys., Inc., 853 F.3d 1272, 1282 (Fed.
Cir. 2017). Appellees’ own cited expert testimony states:
    One of ordinary skill in the art in relation to the
    patents in suit would have understood that the
    term “average discharge current greater than or
    equal to approximately 20 amps” as used in the
    patents in suit referred primarily to the capability
    of providing an average discharge current of ap-
    proximately 20 amps, and that it included the op-
    erational range of currents for battery packs for
    hand held power tools.
J.A. 12336–37 (emphasis added). Thus, Appellees’ own
expert included the word “average” in his stated interpre-
tation of the 20-Amp Limitation.
    Appellees nevertheless argue that omission of the
word “average” from the Board’s construction is supported
by evidence in the record showing that batteries were
commonly tested using “[c]onstant current discharge
tests” that held current constant while measuring voltage.
Resp. Br. 42 (citing J.A. 3898–99). While this may be
true, there is no indication in the specification4 that this
sort of testing should limit the plain and ordinary mean-
ing of “average,” which would include situations when
current rises above and dips below the 20-amp target so


    4    All of the patents at issue have substantially iden-
tical specifications.
SNAP-ON INC.   v. MILWAUKEE ELECTRIC TOOL CORP.          5



long as the average discharge current over the entire
rated capacity is 20 amps or greater.
    The specification references the 20-Amp Limitation in
only one place:
   In some constructions, the battery pack 30 can
   power various power tools (including a driver drill
   300 and circular saw 305) having high discharge
   current rates. For example, the battery pack 30
   can supply an average discharge current that is
   equal to or greater than approximately 20 A, and
   can have an ampere-hour capacity of approxi-
   mately 3.0 A-h.
J.A. 267, ’290 patent col. 10 ll. 20–26. Snap-on argues,
and Appellees do not dispute, that a battery pack dis-
charges current in bursts when used with a circular saw,
such that the current would swing above and below 20
amps. The fact that the phrase “average discharge cur-
rent” is only used in the portion of the specification de-
scribing an “example” of embodiments that undisputedly
discharge current at levels that swing above and below 20
amps shows that the word “average” should take on its
ordinary meaning, especially given the Board’s obligation
to use the broadest reasonable construction in IPRs.
Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2142
(2016).
    For the foregoing reasons, we hold that the correct
claim construction of the 20-Amp Limitation is: “the
battery cells, when configured together in a battery pack,
are capable of producing, on average, reasonably close to
20 amps of discharge current or greater over the course of
delivering their entire rated capacity.” Although the
Board erred in omitting the word “average” from its
construction, the Board’s fact findings regarding obvious-
ness are still supported by substantial evidence and the
6           SNAP-ON INC.   v. MILWAUKEE ELECTRIC TOOL CORP.



Board’s legal determinations of obviousness are correct
under the proper claim construction. 5 The harmless error
rule applies to appeals from the Board. See, e.g., In re
Watts, 354 F.3d 1362, 1369 (Fed. Cir. 2004). Regarding
Hilti’s proposed combination of the Takano and Yanai
prior art references, substantial evidence supports the
Board’s conclusion that the Yanai cells referred to in
Hilti’s petition would never reach the 20-amp threshold,
let alone that the cells could sustain operation, on aver-
age, at 20 amps. See generally, e.g., J.A. 415–25. With
respect to Snap-on’s proposed combination of Fohr, Sato,
and Hallaj, substantial evidence supports the Board’s
conclusion that a person of ordinary skill in the art would
have no motivation to combine these references and no
reasonable expectation of success in achieving the 20-Amp
Limitation, even under the proper construction. See
generally, e.g., J.A. 796–804.
    We have considered all of Snap-on’s remaining argu-
ments and find them to be unpersuasive in overcoming
the foregoing conclusions.
                      AFFIRMED




    5   We have considered all of the arguments in the
briefs submitted by Snap-on and Hilti, Inc. (co-petitioner
for three of the above-captioned IPRs) and find them to be
unpersuasive, even under the correct claim construction.
