  United States Court of Appeals
      for the Federal Circuit
                ______________________

         HOMELAND HOUSEWARES, LLC,
                 Appellant

                          v.

           WHIRLPOOL CORPORATION,
                     Appellee
              ______________________

                      2016-1511
                ______________________

    Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2014-
00877.
                 ______________________

                Decided: August 4, 2017
                ______________________

    RAYMOND JOSEPH TROJAN, Trojan Law Offices, Bever-
ly Hills, CA, argued for appellant. Also represented by
DYLAN C. DANG, FREDRICK S. TSANG.

    RICHARD HUNG, Morrison & Foerster LLP, San Fran-
cisco, CA, argued for appellee. Also represented by
ESTHER KIM CHANG, PETER J. YIM; BRIAN ROBERT MATSUI,
Washington, DC.
                ______________________
2    HOMELAND HOUSEWARES, LLC    v. WHIRLPOOL CORPORATION



    Before PROST, Chief Judge, NEWMAN, and DYK, Circuit
                         Judges.
      Opinion for the court filed by Circuit Judge DYK.
     Dissenting Opinion filed by Circuit Judge NEWMAN.
DYK, Circuit Judge.
    Homeland Housewares, LLC (“Homeland”) petitioned
the United States Patent and Trademark Office Patent
Trial and Appeal Board (“Board”) for an inter partes
review of claims 1–16 of U.S. Patent No. 7,581,688 (“’688
patent”), which is assigned to Whirlpool Corporation
(“Whirlpool”). The Board did not construe the key term
“settling speed” found in the claims and determined that
the claims were not invalid as anticipated by prior art
reference U.S. Patent No. 6,609,821 (“Wulf”). Homeland
appeals. We reverse.
                       BACKGROUND
    The ’688 patent relates to household blenders. The
invention claimed in the ’688 patent is a pre-programmed,
automated blending cycle designed to blend items “quick-
ly and reliably—by repeatedly dropping to a speed slow
enough to allow the blender contents to settle around the
cutter assembly, and then returning to a [higher] speed
suitable for processing the contents.” Appellee Br. 4.
     As admitted in the ’688 patent itself, it was well-
known that a user could manually pulse between a high
speed and a low speed to “achieve[] . . . a pattern of
movement that introduces the entire contents of the
reservoir into contact with the rotating blades” for effi-
cient mixing. ’688 patent, col. 1 ll. 20–23; see also id. at
col. 6 ll. 46–50. Thus, the claimed automatic blending
routine was, in the prior art, done manually. There were
also blenders on the market which allowed “prepro-
HOMELAND HOUSEWARES, LLC   v. WHIRLPOOL CORPORATION      3



gram[ing] ‘on-off’ sequence[s] [to] enable[] hands-free
operation of the blender.” Id. at col. 1 ll. 38–39.
   An independent claim at issue, claim 1, provides:
   A cycle of operation for a blender comprising a
   motor, a container for holding items for pro-
   cessing, and a cutter assembly located within the
   container and operably coupled to the motor
   whereby the motor effects the rotation of the cut-
   ter assembly, the cycle comprising:
   automatically controlling a rotational speed of the
   cutter assembly to effect a pulsing of the speed of
   the cutter assembly wherein each pulse compris-
   es:
   (A) a constant speed phase, where the operating
   speed of the cutter assembly is maintained at a
   predetermined operating speed,
   (B) a deceleration phase, where the speed of the
   cutter assembly is reduced from the operating
   speed to a predetermined settling speed indicative
   of the items in the container having settled around
   the cutter assembly, which is less than the operat-
   ing speed and greater than zero, and
   (C) an acceleration phase, where the speed of the
   cutter assembly is increased from the settling
   speed to the operating speed.
Id. at col. 7 ll. 4–23 (emphases added). Claim 1 is repre-
sentative and there are no patentability distinctions
offered here with respect to the other claims of the ’688
patent. 1



   1   The other independent claim, claim 9, is a method
claim for what is claimed in claim 1. The dependent
4    HOMELAND HOUSEWARES, LLC     v. WHIRLPOOL CORPORATION



     On June 2, 2014, Homeland petitioned the Board for
an inter partes review of claims 1–16 of the ’688 patent,
seeking a construction of “settling speed,” and arguing,
inter alia, that the claims at issue are invalid due to
anticipation by Wulf. Like the ’688 patent, Wulf noted
that it was well-known that manually “[p]ulsing the
motor . . . at high and then low speeds permits the mate-
rial being blended to fall back to the region of the cutting
knives[,] thereby improving the blending or mixing of the
material.” Wulf, col. 1 ll. 36–39. Wulf notes that this
manual “process can be very frustrating,” id. at col. 2
l. 20, and thus teaches “a blender . . . that is programmed
to [automatically] accomplish predetermined [blending]
functions and routines,” id. at col. 2 ll. 25–27.
    In its Final Written Decision, the Board declined to
provide a construction of “settling speed” and concluded
that Homeland had “not shown, by a preponderance of the
evidence, that any claim of the ’688 patent is anticipated
by Wulf.” J.A. 7, 14.
   Homeland appeals.       We have jurisdiction under 28
U.S.C. § 1295(a)(4).
    In appeals from inter partes reviews, we review the
Board’s conclusions of law de novo and the Board’s find-
ings of fact for substantial evidence. Microsoft Corp. v.
Proxyconn, Inc., 789 F.3d 1292, 1297 (Fed. Cir. 2015).


claims cover minor features, including the cycle being
repeated (claims 2 and 10), maintaining the operating
speed for an unspecified, predetermined time period
(claims 3, 4, 5, 11, 12, 13, and 14), decelerating the cutter
in a continuous manner (claims 6 and 15), reducing
operating speed of the cutter to allow settling (claim 8),
and decelerating the cutter by terminating the power to
the motor (claims 7 and 16).
HOMELAND HOUSEWARES, LLC    v. WHIRLPOOL CORPORATION       5



Claim construction is an issue of law that we review de
novo where, as here, there is no relevant extrinsic evi-
dence. Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct.
831, 841 (2015).
                       DISCUSSION
                             I
      Anticipation is a two-step analysis. The first step is
properly interpreting the claims. Beachcombers v. Wil-
deWood Creative Prods., Inc., 31 F.3d 1154, 1160 (Fed.
Cir. 1994). The second step is determining whether the
limitations of the claims, as properly interpreted, are met
by the prior art. Id. The Board determined that Wulf did
not anticipate the ’688 patent because its disclosures did
not meet the “settling speed” limitation. J.A. 14. Howev-
er, the Board did “not adopt any explicit construction of
the term for [its] Final Written Decision,” J.A. 7, even
though the parties disagreed as to claim construction. 2
Just as district courts must, “[w]hen the parties raise an
actual dispute regarding the proper scope of . . . claims,
. . . resolve that dispute,” O2 Micro Int’l Ltd. v. Beyond
Innovation Tech. Co., 521 F.3d 1351, 1360 (Fed. Cir.
2008), the Board also must resolve such disputes in the
context of IPRs. See CSR, PLC v. Skullcandy, Inc., 594 F.
App’x 672, 678 (Fed. Cir. 2014) (holding that “[t]he Board
erred by failing to construe ‘threshold value’ as it is used


   2     The dissent urges that the Board adopted a con-
struction of “settling speed” in its Institution Decision as
“a speed at which the cutter assembly has slowed enough
to allow the blender contents to be processed again.”
Dissenting Op. 2–3. However, in its Final Written Deci-
sion, the Board specifically held that it did not adopt any
explicit construction of the term “settling speed.” See J.A.
7.
6       HOMELAND HOUSEWARES, LLC   v. WHIRLPOOL CORPORATION



in claims 1–6 before finding that [prior art reference]
Smith failed to disclose a ‘threshold value’” in anticipa-
tion). Given that the Board did not rely on extrinsic
evidence here as to claim construction, we can determine
the correct construction of “settling speed” and then
determine whether the Board correctly held that Wulf
does not meet the limitations of claim 1. Teva, 135 S. Ct.
at 841.
     “[T]he claim construction inquiry . . . begins and ends
in all cases with the actual words of the claim.” Renishaw
PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1248
(Fed. Cir. 1998) (citations omitted). Here, the relevant
language of claim 1 provides that during pulsing, “the
speed of the cutter assembly is reduced from the operat-
ing speed to a predetermined settling speed.” ’688 patent,
col. 7 ll. 15–17 (emphasis added).
    Whirlpool proposes that “a predetermined settling
speed” means “a speed, greater than zero, that indicates
that items have settled around the cutter assembly.”
Appellee’s Br. 43. At times on appeal, Whirlpool argues
that empirical testing is required to establish a settling
speed. Whirlpool recognizes that empirical testing would
require determining the settling speed for each individual
blender and its content load, “[b]ecause so many factors
affect the settling speed.” Appellee’s Br. 9; see also id. at
45; Oral Arg. 18:16–25 (skilled artisans looking at the
’688 patent would “perform tests to determine . . . at what
point in time [the blender ingredients] settles to arrive at
the predetermined settling speed”). 3 We conclude that a


    3   Whirlpool also took this position that empirical
testing is required before the Board. See Appellant Br. 18
(Whirlpool counsel arguing that “[t]he patent does talk
about this concept of needing to empirically test and
HOMELAND HOUSEWARES, LLC    v. WHIRLPOOL CORPORATION      7



construction that would require empirical testing is
incorrect. Indeed, the dissent also does not endorse a
claim construction that requires empirical testing.
    The words of a claim are generally given their ordi-
nary and customary meaning. Phillips v. AWH Corp., 415
F.3d 1303, 1312 (Fed. Cir. 2005). In some cases, the
ordinary meaning of claim language may be readily
apparent and claim construction will involve little more
than the application of the widely accepted meaning of
commonly understood words. Id. at 1314.
    Here, it is undisputed that the plain meaning of “pre-
determined” is to determine beforehand. This plain
language definition does not require that a predetermined
speed be empirically determined for each use, depending
on the particular blender or the individual contents of the
blender.
    Claims must also be read in view of the specification,
of which they are a part. Phillips, 415 F.3d at 1315.
While the specification refers to an embodiment of the
invention in which “a predetermined settling speed” is
empirically determined and varies depending on blender
use, the process for empirically determining a settling
speed is neither taught in the specification nor a part of
the claims. The claim language only requires “a prede-
termined settling speed,” and does not require empirically
determining a particular settling speed for a particular
blender or a particular blender load.




determine what the settling speed is for a specific blender
and it’s specifically depending in part on the shape of the
container, the type of blender it is and the contents, the
expected contents as an example”).
8    HOMELAND HOUSEWARES, LLC     v. WHIRLPOOL CORPORATION



    Whirlpool argues that “a predetermined settling
speed” should be defined in light of the specification
because the specification suggests that settling speed can
be empirically determined. The specification states that
the
    predetermined settling speed . . . [is a] function[]
    of the blender motor size, the cutter assembly con-
    figuration, the container size and configuration,
    the properties such as hardness and viscosity of
    the items to be processed in the blender, and the
    like . . . . Thus, these speeds and time periods will
    vary for different blenders, and must be deter-
    mined empirically for a particular blender.
’688 patent, col. 5 ll. 18–27 (emphasis added). But this
suggestion cannot define the scope of the claim, since it
provides no meaningful definition of an empirically de-
termined settling speed other than with respect to a
single example (relating to crushed ice). Of course, “par-
ticular embodiments appearing in the written description
will not be used to limit claim language that has broader
effect.” Innova/Pure Water, Inc. v. Safari Water Filtra-
tion Sys., Inc., 381 F.3d 1111, 1117 (Fed. Cir. 2004). And
Whirlpool in its brief at one point appeared to concede
that settling speed does not require empirical testing. See
Appellee Br. 45 n.8 (“Although Homeland argues that
Whirlpool’s construction requires that the settling speed
be determined empirically for a particular blender, Whirl-
pool’s construction does no such thing.” (quotation marks
and citation omitted)).
    The definition proposed by Homeland is also incorrect.
Homeland proposes that “settling speed” means any
comparative low speed less than the operating speed. But
not every lowering in speed will cause settling. By way of
example, as the appellee points out, if the operating speed
is 6000 rpm and it was lowered to 5900 rpm, the contents
will not necessarily settle.
HOMELAND HOUSEWARES, LLC    v. WHIRLPOOL CORPORATION        9



    Under these circumstances, we, of course, may adopt
a definition not proposed by either party that best fits
with the claim language and specification. See Exxon
Chem. Patents, Inc. v. Lubrizol Corp., 64 F.3d 1553, 1556
(Fed. Cir. 1995) (“[T]he judge’s task is not to decide which
of the adversaries[’ constructions] is correct. Instead the
judge must independently assess the claims, the specifica-
tion, . . . and declare the meaning of the claims.”).
    The broadest reasonable construction of “a predeter-
mined settling speed” is a speed that is slower than the
operating speed and permits settling of the blender con-
tents. This is consistent with the ordinary and customary
meaning of the words of the claim, as discussed above,
and with the specification. Phillips, 415 F.3d at 1312,
1315. For example, this is in accord with the specifica-
tion, which refers to the illustrative settling speed at 1120
rpm as a “speed that slows significantly enough to allow
the contents to reach the ‘settled’ condition to be pro-
cessed again.” ’688 patent, col. 6 ll. 16–18. This is also
the correct construction because it is “the broadest rea-
sonable interpretation consistent with the written de-
scription.” In re NTP, Inc., 654 F.3d 1268, 1274 (Fed. Cir.
2011) (quoting In re Baker Hughes, Inc., 215 F.3d 1297,
1301 (Fed. Cir. 2000)). Here, unlike in Exxon, 64 F.3d at
1556, our claim construction is not new, but simply repre-
sents a midpoint between the two opposing constructions
now urged by the parties. Significantly, this construction
is also practically identical to the construction utilized by
the Board in its Institution Decision, see J.A. 314, and the
overall construction urged by the patentee’s expert, see
J.A. 406, 412, apart from the requirement for empirical
testing.
10   HOMELAND HOUSEWARES, LLC      v. WHIRLPOOL CORPORATION



                              II
    Based on this construction of “settling speed,” we con-
clude that the Board erred in finding that Figure 25 of
Wulf does not anticipate the ’688 patent.
    Figure 25 of Wulf discloses the following automated
blender routine:




     The Board found that Homeland’s anticipation theory
“is not without appeal,” but also found that Homeland
failed to present evidence showing Figure 25 of Wulf
anticipates the ’688 patent. J.A. 13–14. In order to
evaluate whether Figure 25 anticipates, we must deter-
mine what Figure 25’s “low” speed means. For this, we
look to Wulf’s specification, which teaches two relevant
characteristics of “low” speeds. “[W]hen a patentee uses a
claim term throughout the entire patent specification, in a
manner consistent with only a single meaning, he has
defined that term ‘by implication.’” Bell Atl. Network
Servs., Inc. v. Covad Comm’ns Grp., Inc., 262 F.3d 1258,
1271 (Fed. Cir. 2001).
    First, in Wulf, the term “low speeds” appears only
once in the specification, where the background teaches
that “[p]ulsing the motor on/off or at high and then low
speeds permits the material being blended to fall back to
the region of the cutting knives thereby improving the
blending or mixing of the material.” Wulf, col. 1. ll. 36–
39. This is consistent with the testimony of the Whirlpool
expert, who stated that “slower speeds will tend to allow
items to settle, while higher speeds will tend to . . . keep[]
items suspended above the cutter assembly.” J.A. 409–10.
HOMELAND HOUSEWARES, LLC     v. WHIRLPOOL CORPORATION       11



Because Wulf uses “low speeds” to refer to speeds at
which blending ingredients fall back to the cutters, we
conclude that Figure 25’s use of that same term should be
understood in the same manner.
     Second, Wulf’s specification uses the term “low” or
“lower” in the context of motor speed discussions in four
additional places. See Wulf, col. 1 ll. 27–31; col. 1 ll. 41–
43; col. 15 ll. 32–46 (discussing Figs. 28–30); col. 19 ll. 57–
60. In each discussion, Wulf makes clear that a “low”
speed is discretely and significantly different from a
“high” speed. For example, Figure 30 shows that there
are only two buttons—low and high—that a user may
press. J.A. 153. In another example, Wulf teaches that
“speeds in a low range [in the prior art] are obtained by
applying only half . . . voltage to the motor.” Wulf, col. 1
ll. 28–29. Therefore, we conclude that Figure 25’s use of
“low” should also be understood to indicate a speed that is
significantly different from a “high” speed.
    In light of these teachings from the Wulf specification,
Figure 25 discloses a settling speed limitation consistent
with our construction, as well as the other elements of the
pulsing cycle in claim 1. Specifically, claim 1’s “constant
speed phase, where the operating speed of the cutter
assembly is maintained at a predetermined operating
speed,” is found in Wulf Fig. 25’s “forward high speed 15
seconds.” Claim 1’s “deceleration phase, where the speed
of the cutter assembly is reduced from the operating
speed to a predetermined settling speed indicative of the
items in the container having settled around the cutter
assembly, which is less than the operating speed and
greater than zero,” is found in Wulf Fig. 25’s “ramp down
to low, low for 5 seconds.” And Claim 1’s “acceleration
phase, where the speed of the cutter assembly is increased
from the settling speed to the operating speed” is found in
Wulf Fig. 25’s “ramp to high, high for 15 seconds.” Figure
12   HOMELAND HOUSEWARES, LLC      v. WHIRLPOOL CORPORATION



25 thus contains every limitation found in the ’688 pa-
tent’s claim 1.
                             III
    The Board also found that Homeland “left the testi-
mony of Patent Owner’s witness, Mr. Faerber, unrebut-
ted. Under such circumstances, [it was] unwilling to
discount Mr. Faerber’s testimony that Wulf” does not
anticipate. J.A. 14. However, we must disregard the
testimony of an expert that is plainly inconsistent with
the record, NantKWest, Inc. v. Lee, No. 15-2095, 2017 WL
1735330, at *9 (Fed. Cir. 2017), or “based on an incorrect
understanding of the claim[s],” Cordis Corp. v. Boston Sci.
Corp., 658 F.3d 1347, 1357 (Fed. Cir. 2011). That is the
situation here, where Faerber makes several incorrect
statements with respect to the record, and in one respect,
adds an additional claim requirement.
     Faerber first states that “Wulf gives no indication of
whether any of these speeds . . . would cause items to
settle around the cutter,” and that Wulf “only discloses
items settling when the motors stops.” J.A. 430–31. This
is clearly contradicted by the record, as Wulf teaches that
“[p]ulsing the motor . . . at high and then low speeds
permits the material being blended to fall back to the
region of the cutting knives.” Wulf, col. 1 ll. 36–38.
    Faerber then states that with respect to the routine
disclosed in Figure 25, the “low” speed cannot be the
settling speed because it “is maintained for at least five
seconds . . . [and] there is no reason to maintain a settling
speed for so long.” J.A. 430. The ’688 patent claims do
not contain any limitations with respect to how long the
settling speed needs to be maintained. The specification
teaches that these “time periods will vary for different
blenders, and must be determined empirically for a par-
ticular blender.” ’688 patent, col. 5 ll. 25–27. In fact, in
the sole example provided, “4 seconds represents a prede-
HOMELAND HOUSEWARES, LLC     v. WHIRLPOOL CORPORATION      13



termined deceleration time period during which solid
particles have accumulated into the ‘settled’ condition.”
Id. at col. 4 ll. 23–25. Faerber thus incorrectly imports a
limitation into the claims. 4
    Faerber finally states that because Figure 25 is enti-
tled “Powdered Drinks,” “even very low speeds will cause
the blender contents to circulate, rather than settle.
Thus, one of ordinary skill would not expect Figure 25 to
disclose a settling speed.” J.A. 430–31. When all of “the
structural limitations recited in [the claims] are all found
in the [prior art] reference[,] . . . the absence of a disclo-
sure relating to [intended] function does not defeat . . . [a]
finding of anticipation.” In re Schreiber, 128 F.3d 1473,
1477 (Fed. Cir. 1997). That Figure 25 contains all of the
structural limitations of claim 1, according to the correct
construction, completes the anticipation analysis, regard-
less of intended use.
    “[A] court should discount any expert testimony that
is clearly at odds with . . . the written record of the pa-
tent.” Phillips v. AWH Corp., 415 F.3d 1303, 1318 (Fed.
Cir. 2005) (quotation marks omitted). Here, we conclude
that at least these portions of Faerber’s expert testimony
are inconsistent with the intrinsic record and therefore
should be discounted.
                             IV
    Having concluded that all the claims of the ’688
patent are invalid as anticipated by Wulf, we need not


    4   Contrary to the dissent, in holding that Wulf does
not anticipate, the Board never made any findings with
respect to the length of the settling speed as a part of the
claimed invention, nor approved that aspect of the Faer-
ber opinion.
14    HOMELAND HOUSEWARES, LLC   v. WHIRLPOOL CORPORATION



address the Board’s obviousness determination with
respect to the Kolar prior art reference, U.S. Patent No.
6,364,522.
                     REVERSED
                         COSTS
     No costs.
  United States Court of Appeals
      for the Federal Circuit
                 ______________________

          HOMELAND HOUSEWARES, LLC,
                  Appellant

                            v.

            WHIRLPOOL CORPORATION,
                      Appellee
               ______________________

                       2016-1511
                 ______________________

    Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2014-
00877.
                 ______________________
NEWMAN, Circuit Judge, dissenting.
    The court today rewrites the claims of the ’688 patent,
adopting a “claim construction” that states the invention
more broadly than did the patentee. The court then holds
its broadened claims anticipated by the prior art, on
which the patentee has provided an improvement that is
not shown in the prior art.
    The court errs in its analysis of the subject matter
that is claimed, and strays from the substantial evidence
standard of review of PTAB findings of fact. From the
court’s finding of invalidity based on “anticipation,” over-
turning the finding of the Board, I respectfully dissent.
2       HOMELAND HOUSEWARES, LLC   v. WHIRLPOOL CORPORATION



                        DISCUSSION
    The court’s rejection of the Board’s finding that the
claims are not anticipated is based on an incorrect under-
standing of the claims, coupled with an unwarranted
enlargement of the references. The ’688 patent is directed
to an improvement in blender technology, an improve-
ment explained in the specification and by unrebutted
expert testimony. My colleagues make their own findings,
construe the claims to broadly include the prior art, and
then invalidate the claims based on their unduly broad
claim construction.
    The description in the specification, and the guidance
of the prosecution history, negate the majority’s construc-
tion of the claims to include the prior art. The process
described and claimed in the ’688 patent is not shown in
the prior art. The Board’s findings are supported by
substantial evidence, and require affirmance. My col-
leagues’ de novo findings are contrary to the record,
overstep our appellate role, and are incorrect in fact and
law.
    The claimed subject matter, including the
    settling speed and the blender sequence, are
    not shown in the prior art
    My colleagues criticize the absence of “construction” of
the term “settling speed” in the Board’s final decision.1
Maj. Op. 5. The Board did not err in holding that this
term did not require “construction.” Such a holding by
the expert PTO Board is not grounds for discarding the
Board’s findings and ignoring the expert and documen-
tary evidence presented to and discussed by the Board.



    1  Homeland Housewares, LLC v. Whirlpool Corp.,
No. IPR2014-00877 (P.T.A.B. Oct. 21, 2015) (“Board Op.”).
HOMELAND HOUSEWARES, LLC     v. WHIRLPOOL CORPORATION         3



     The Board also stated that: “Our decision ultimately
does not hinge on the precise contours of a construction of
‘settling speed.’” Board Op. 7. In its initial act to institute
review, the Board described the settling speed “in accord-
ance with the patent’s disclosure, i.e., as a speed at which
the cutter assembly has slowed enough to allow the
blender contents to be processed again.” Homeland
Housewares, LLC v. Whirlpool Corp., IPR2014-00877,
2014 WL 5585266, at *5. My colleagues do not ascribe
error to this finding, but simply discard it in favor of their
own definition of settling speed based upon generalized
blender operations of the prior art, particularly prior art
from 1972 as discussed in Wulf, through which my col-
leagues reach their ultimate finding of invalidity based on
“anticipation.”
    No error has been shown in the Board’s treatment of
“settling speed” in the ’688 patent, a treatment based on
the specification, the prior art, and unrebutted expert
testimony. My colleagues do not discuss the substantial
evidence that supports the Board’s ruling. Contra 5
U.S.C. § 706(2) (the appellate task is to “hold unlawful
and set aside agency action, findings, and conclusions
found to be . . . unsupported by substantial evidence.”).
Here, the Board’s findings are plainly supported by sub-
stantial evidence.
  The Board correctly found that the Wulf refer-
  ence does not anticipate the ‘688 claims
    “Anticipation under 35 U.S.C. § 102 is a question of
fact,” and “[w]e review the Board’s factual findings for
substantial evidence,” Kennametal, Inc. v. Ingersoll Cut-
ting Tool Co., 780 F.3d 1376, 1381 (Fed. Cir. 2015).
    The panel majority finds that “[i]n light of [] teachings
from the Wulf specification, Figure 25 discloses a settling
speed limitation consistent with our construction, as well
as the other elements of the pulsing cycle in claim 1” and
thus finds anticipation. Maj. Op. 11. The panel majority
4    HOMELAND HOUSEWARES, LLC    v. WHIRLPOOL CORPORATION



omits the specific limitations of the claim, and restates
the ’688 invention in generalized terms that do not distin-
guish it from Wulf. However, the blender systems in Wulf
and in the ’688 patent are not the same, and the Wulf
method is distinguished in the ’688 claims. The Board
recognized the distinction, and the Board’s finding that
the ’688 claims are not anticipated by Wulf is supported
by substantial evidence in the record before the Board.
    In finding that Wulf anticipates, the panel majority
ignores the limitations in the ’688 claims, and also vio-
lates “[t]he requirement that the prior art elements
themselves be ‘arranged as in the claim’ means that
claims cannot be ‘treated . . . as mere catalogs of separate
parts, in disregard of the part-to-part relationships set
forth in the claims and that give the claims their mean-
ing.’” Therasense, Inc. v. Becton, Dickinson & Co., 593
F.3d 1325, 1332 (Fed. Cir. 2010) (quoting Lindemann
Maschinenfabrik GmbH v. Am. Hoist & Derrick Co., 730
F.2d 1452, 1459 (Fed. Cir. 1984)).
    Wulf indeed shows some automation of blender action,
and the Board cited the unrebutted expert testimony in
finding that Wulf lacked the automated pulsing of the
’688 patent. The majority does not acknowledge the basis
of the Board’s decision, and instead cites Wulf’s discussion
of a 1972 Swanke patent as background information to fill
any anticipatory gaps in Wulf. The Board found that “the
manual process described by Wulf as background infor-
mation does not anticipate the independent claims, which
require ‘automatically controlling a rotational speed of the
cutter assembly’ to effect the recited pulsing.” Board Op.
13. That finding is supported by substantial evidence.
    My colleagues do not explain where the procedure
claimed in the ’688 patent is shown in Wulf, including in
the discussion of the Swanke patent and the general
operation of blenders in 1972. The panel majority instead
imputes to Wulf’s general reference to high and low motor
HOMELAND HOUSEWARES, LLC    v. WHIRLPOOL CORPORATION        5



speeds, the hindsight knowledge of the advance described
and claimed in the ’688 patent. As the Board discussed,
Wulf does not show the ’688 method whereby each pulse
includes a predetermined operating speed, a deceleration
phase to the settling speed, and an acceleration from the
settling speed to the operating speed—all limitations in
claim 1. Nor does Wulf show “automatically controlling a
rotational speed of the cutter assembly to effect a puls-
ing,” in claim 1. The distinctions from Wulf were found
and relied upon by the Board and are not disputed by my
colleagues; instead, they are ignored. However, “[t]he
standard for lack of novelty, that is, for ‘anticipation,’ is
one of strict identity.” 1-3 Chisum on Patents § 3.02
(citing sources).
    “A patent is invalid for anticipation when the same
device or method, having all of the elements contained in
the claim limitations, is described in a single prior art
reference.” Crown Operations Int’l, Ltd. v. Solutia Inc.,
289 F.3d 1367, 1375 (Fed. Cir. 2002). The majority’s
reliance on general background of blender operation does
not establish anticipation of the claims, whose limitations
are not shown in either Wulf or the background references
cited in Wulf. The Board’s finding that the blender opera-
tion claimed in the ’688 patent is not described in the
prior art, is supported by substantial evidence.
  Wulf’s Figure 25 does not show the method of
  the ’688 claims
    My colleagues focus on Figure 25 of Wulf, stating that
the functions marked in the figure anticipate the ’688
claims. The Board received expert testimony on Figure
25, with Mr. Faerber testifying that “Wulf gives no indica-
tion of whether any of these speeds . . . would cause items
to settle around the cutter,” and that Wulf “only discloses
items settling when the motor stops.” J.A. 430–31 (citing
Wulf, col. 2, ll. 15–19 (“[t]he user may have to stop the
blending process to dislodge the ice or to assure the ice is
6    HOMELAND HOUSEWARES, LLC     v. WHIRLPOOL CORPORATION



coming into contact with the blades.”)). The Board ob-
served that the expert testimony was “unrebutted.” The
testimony remains unrebutted.
    Instead, the panel majority mischaracterizes the ex-
pert testimony. Wulf’s Figure 25 shows both a “ramp
down to low” and then “low for 5 seconds,” and Mr. Faer-
ber testified that “the ‘low’ speed cannot be the settling
speed because it “is maintained for at least five sec-
onds . . . [and] there is no reason to maintain a settling
speed for so long.” J.A. 430. The majority states that the
specification contradicts Mr. Faerber; that is incorrect, as
shown in the Board’s discussion.
    The Board found that the specification teaches decel-
eration to the settled condition via the settling speed, not
deceleration and operation at the settled condition via the
settling speed. Mr. Faerber explained that “[i]t would not
be useful to maintain the settling speed for any signifi-
cant length of time,” J.A. 420–21, since “speeds typical of
settling speeds do not efficiently comminute the blender
contents,” J.A. 412. Mr. Faerber explained that where a
speed is maintained in accordance with Wulf, it is “likely
too high to be considered a settling speed.” J.A. 420–21.
Mr. Faerber’s testimony and the Board’s findings are not
in conflict with the specification; it is the majority’s find-
ing that is in conflict with the specification.
    The panel majority also brushes aside Mr. Faerber’s
testimony regarding the relative slow and high speeds of
a blending program for powdered drinks. Maj. Op. 12–13.
The inability of powered drink mix to settle “even [at]
very low speeds” reinforces his testimony that the “low”
speed in Figure 25 is not a “settling speed” since nothing
would “settle.” This is not merely an absence of an in-
HOMELAND HOUSEWARES, LLC     v. WHIRLPOOL CORPORATION         7



tended function; it is lack of a structural limitation, as the
Board found.
    The Board’s findings are supported by substantial ev-
idence; the majority does not show otherwise. 2 As reiter-
ated in Apple Inc. v. Samsung Electronics Co., Ltd., “such
fact findings are indisputably the province of the [fact-
finder].” 839 F.3d 1034, 1039 (Fed. Cir. 2016). The
structure of the post-grant administrative process assigns
to this court the traditional “appellate function . . . limited
to deciding the issues raised on appeal by the parties,
deciding these issues only on the basis of the record made
below, and . . . requiring appropriate deference be applied
to the review of factfindings.” Id.; see also Cutter v. Wil-
kinson, 544 U. S. 709, 718, n.7 (2005) (“[W]e are a court of
review, not first view.”). The panel majority does not
discuss the substantial evidence on which the Board’s
decision was based, ignores the unrebutted expert evi-
dence, and in general oversteps the appellate role.
                        CONCLUSION
    Substantial evidence supports the Board’s finding of
no anticipation. The ’688 patent embodies a novel distinc-



    2   The majority also states that “[c]ontrary to the
dissent, in holding that Wulf does not anticipate, the
Board never made any findings with respect to the length
of the settling speed as a part of the claimed invention,
nor approved that aspect of the Faerber opinion.” Maj.
Op. 13 n.4.     The majority does not explain how these
aspects affect the substantial evidence supporting the
Board’s decision. The question on appeal is not whether
the Board discussed the majority’s selected issues; the
question is whether the Board’s findings in support of its
decision are supported by substantial evidence. The
record demonstrates that they are.
8   HOMELAND HOUSEWARES, LLC    v. WHIRLPOOL CORPORATION



tion not shown in any cited reference, as the Board recog-
nized. My colleagues present a flawed analysis and
incorrect conclusion. I respectfully dissent.
