       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                 NESTLE USA, INC.,
                     Appellant

                           v.

              STEUBEN FOODS, INC.,
                      Appellee
               ______________________

                      2016-1750
                ______________________

    Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2014-
01235.
                 ______________________

                 Decided: May 9, 2017
                ______________________

   THOMAS H. JENKINS, Finnegan, Henderson, Farabow,
Garrett & Dunner, LLP, Washington, DC, argued for
appellant. Also represented by TYLER MICHAEL AKAGI;
VIRGINIA L. CARRON, KEVIN D. RODKEY, Atlanta, GA.

    THOMAS FISHER, Oblon, McClelland, Maier & Neu-
stadt, LLP, Alexandria, VA, argued for appellee. Also
represented by SCOTT ANTHONY MCKEOWN; CHARLIE
AVIGLIANO, W. COOK ALCIATI, Steuben Foods, Inc., Jamai-
ca, NY.
2                    NESTLE USA, INC.   v. STEUBEN FOODS, INC.



                  ______________________

    Before REYNA, MAYER, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
    Nestle USA, Inc. appeals from a final decision of the
Patent Trial and Appeal Board finding that claims 18–20
of U.S. Patent No. 6,945,013 were not obvious in view of
certain prior art. Because the Board erroneously con-
strued the term “aseptic,” we vacate the Board’s decision
and remand for further proceedings.
                              I
    Nestle petitioned the Patent Trial and Appeal Board
for inter partes review (IPR) of claims 18–20 of U.S.
Patent No. 6,945,013. The claims at issue cover “meth-
od[s] for automatically aseptically bottling aseptically
sterilized foodstuffs,” where bottles are “aseptically disin-
fect[ed]” “at a rate greater than 100 bottles per minute,”
and “aseptically fill[ed] . . . with aseptically sterilized
foodstuffs.”
    The Board instituted IPR and construed the term
“aseptic,” as used in claims 18–20, to mean “aseptic to any
applicable United States FDA standard, and in the ab-
sence of any such standard, aseptic assumes its ordinary
meaning of free or freed from pathogenic microorgan-
isms.” J.A. 14. Based on that construction, and in light of
the prior art references, the Board concluded that an
ordinarily skilled artisan would not have attained the
invention claimed in claims 18–20 with a reasonable
expectation of success. Nestle timely appealed, and we
have jurisdiction under 28 U.S.C. § 1295(a)(4)(A).
                             II
    On appeal, Nestle argues that the Board’s construc-
tion of “aseptic” is erroneous because it incorporates “any
applicable United States FDA standard” rather than only
NESTLE USA, INC.   v. STEUBEN FOODS, INC.                      3



FDA regulations governing “aseptic packaging.”               We
agree.
    “Pursuant to Teva’s framework and our review of
Board determinations, we review the Board’s ultimate
claim constructions de novo and its underlying factual
determinations involving extrinsic evidence for substan-
tial evidence.” Microsoft Corp. v. Proxyconn, Inc., 789
F.3d 1292, 1297 (Fed. Cir. 2015). Where “the intrinsic
record fully determines the proper construction,” our
review is de novo. Id. In an IPR, the Board must con-
strue terms according to their “broadest reasonable con-
struction.” Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct.
2131, 2144 (2016). Of course, “giving claims their broad-
est reasonable interpretation . . . does not include giving
claims a legally incorrect interpretation.” Proxyconn, 789
F.3d at 1298 (quoting In re Skvorecz, 580 F.3d 1262, 1267
(Fed. Cir. 2009)) (alteration in original).
    “Although words in a claim are generally given their
ordinary and customary meaning, a patentee may choose
to be his own lexicographer . . . .” Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996).
“When a patentee explicitly defines a claim term in the
patent specification, the patentee’s definition controls.”
Martek Biosciences Corp. v. Nutrinova, Inc., 579 F.3d
1363, 1380 (Fed. Cir. 2009). Here, the specification twice
defines the term “aseptic” as the United States “FDA level
of aseptic.” ’013 patent col. 1 l. 67–col. 2 l. 2, col. 4 ll. 28–
29. That is a binding lexicography, and therefore, we
construe aseptic to mean the “FDA level of aseptic.”
    The question then is the scope of the phrase “FDA
level of aseptic.” See Markman v. Westview Instruments,
Inc., 52 F.3d 967, 976 (Fed. Cir. 1995) (The purpose of
claim construction is to “determin[e] the meaning and
scope of the patent claims . . . .”). According to Steuben
Foods, “FDA level of aseptic” incorporates the full “pano-
ply of FDA standards.” Appellee’s Br. at 39 n.2. Similar-
4                    NESTLE USA, INC.   v. STEUBEN FOODS, INC.



ly, the Board construed the phrase to incorporate “any
applicable United States FDA standard.” J.A. 14. Both
interpretations have the effect, according to their adher-
ents, of requiring anything “aseptically” packaged to
satisfy the regulatory requirement of 21 C.F.R.
§ 178.1005(d) that the final product have a hydrogen
peroxide residue of less than 0.5 ppm.
    We disagree. Where the patentee wished to claim
embodiments requiring less than 0.5 ppm of hydrogen
peroxide residue, it did so using express language. See
’013 patent col. 16 ll. 58–60 (“wherein a residual level of
hydrogen peroxide is less than 0.5 PPM”). Moreover, the
FDA’s hydrogen peroxide residue standard applies to all
foodstuffs, regardless of whether they are aseptically
packaged. Accordingly, the scope of “aseptic” cannot
include regulations that apply to foods that are not asep-
tically packaged. Instead, we confine an “FDA level of
aseptic” to FDA regulations related to aseptic packaging.
This approach is supported by the specification’s explana-
tion that the prior art systems failed to “provi[de] a high
output aseptic filler that complies with the stringent
United States FDA standards for labeling a packaged
product as ‘aseptic.’” ’013 patent col. 1 ll. 64–67 (emphasis
added).
    Though the FDA does not define “aseptic” outright, at
the time of the application, it defined “aseptic processing
and packaging” as “the filling of a commercially sterilized
cooled product into presterilized containers, followed by
aseptic hermetical sealing, with a presterilized closure, in
an atmosphere free of microorganisms.”           21 C.F.R.
§ 113.3(a) (1999). And “commercial sterility” was defined
as “free of viable microorganisms having public health
significance, as well as microorganisms of nonhealth
significance, capable of reproducing in the food under
normal nonrefrigerated conditions of storage and distribu-
tion.” Id. § 113.3(e) (1999). These regulations are con-
sistent with the specification, which itself describes
NESTLE USA, INC.   v. STEUBEN FOODS, INC.                5



certain microorganism reduction features of the invention
immediately after defining the term “aseptic.” See ’013
patent col. 4 ll. 29–33. We find that the FDA definitions
recited above set forth a reasonable understanding of the
term “aseptic” within the meaning of the ’013 patent. 1
    Accordingly, we conclude that the Board’s construc-
tion of “aseptic” as incorporating “any applicable United
States FDA standard” rather than only FDA regulations
governing “aseptic packaging” was erroneous. Because
the Board erred in its construction, we vacate the Board’s
opinion and remand for further proceedings consistent
with this opinion.
             VACATED AND REMANDED




1    We briefly note a separate infirmity with the Board’s
approach. The Board created a two-step construction:
first, purporting to apply lexicography, then using the
plain and ordinary meaning as a default. But a claim
term cannot mean different things simultaneously. A
patentee cannot partially serve as a lexicographer for a
claim term: either the specification includes a binding
definition of that term by way of lexicography, or it is to
be read consistent with the plain and ordinary meaning.
