On December 9, 2016, following oral arguments two days earlier, the Federal Circuit affirmed, without opinion, the ITC’s decision concerning claim construction and non-infringement in Outdoor Grills, Inv. No. 337-TA-895. Although the ITC in Outdoor Grills found a violation of Section 337 by certain respondents, the issues on appeal concerned claim construction and non-infringement findings with respect to other respondents. No Section 337-specific issues were argued on appeal.
In Certain Multiple Mode Outdoor Grills (“Outdoor Grills”), Complainant A&J asserted U.S. Patent No. 8,381,712 (“the ’712 patent”) against outdoor grills that have a gas grill and a charcoal grill on the same support structure. Claims 1 and 17 of the ’712 patent recites a barbecue grill with “openable [first and second] covers,” each of which “includes at least one exhaust.” Claim 10 of the ’712 patent recites “openable [first and second] cover means.”
During the ITC investigation, “openable  cover” was construed to mean “a cover that excludes any portion of the grill enclosure that is not openable (i.e., fixed),” and “openable  cover means” was construed as a means-plus-function claim with the same limitation. As a result, some of the accused products offered by certain respondents were found not to infringe.
A&J appealed the following issues: (1) the construction of “openable  cover” in Claims 1 and 17 to exclude any portion of the grill cover that was “not openable” (i.e., fixed), (2) the construction of the means-plus-function Claim 10 to exclude grills that have exhausts on a stationary part of a two-part grill cover, and (3) the Commission’s finding that a certain model did not infringe because its openable cover did not “include” an exhaust, where the exhaust is located below the openable first cover.
Before a panel of Judges Dyk, Reyna, and Plager, the argument primarily concerned the construction of “openable  covers.” Both sides and the panel focused on A&J’s prosecution history statement to the PTO that a combination of two prior art references would “result in a barbeque grill with chimneys connected to exit ports on the fixed portions of the oven/smoker enclosures which are not openable (i.e., not covers).”
Upon questioning by Judge Dyk about this statement, A&J argued that it was ambiguous at best. A&J further argued that this statement to the PTO about Claim 1 should not apply to Claim 10. The ITC, on the other hand, argued that A&J had distinguished its “openable” covers from ones that are “fixed.”
Before the panel, counsel for two intervening respondents briefly raised the issue that the claimed “exhaust” should be limited to smokestack-type structures, based on the disclosures in the specification. The construction of “exhaust” would be addressed only if the Federal Circuit reversed the Commission’s construction of “openable  cover” and “openable  cover means.”
On December 9, 2016, the Federal Circuit panel issued a per curiam decision, without opinion, affirming the ITC’s claim construction and non-infringement decisions.