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PUBLIC VERSION

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UNITED STATES INTERNATIONAL TRADE COMMISSION

Washington, D.C.

 

In the Matter of

CERTAIN CLOUD-CONNECTED
WOOD-PELLET GRILLS AND
COMPONENTS THEREOF
Inv. No. 337-TA-1237

 

ORDER NO. 28: INITIAL DETERMINATION GRANTING-IN-PART RESPONDENT’S MOTION FOR SUMMARY DETERMINATION OF NON-INFRINGEMENT AND TERMINATING THE INVESTIGATION WITH RESPECT TO U.S. PATENT NO.10,218,833

 

(September 3, 2021)

On July 21, 2021, Respondent GMG Products LLC (“GMG”) filed a motion (1237-019) for summary determination of non-infringement, attaching a memorandum in support (the “GMG Memo.”). Pursuant to Order No. 23 (July 28, 2021), GMG filed a supplemental brief to the motion on August 2, 2021 (the “GMG Supp.”).1 Complainant Traeger Pellet Grills LLC (“Traeger”) filed a response in opposition to the motion on August 9, 2021 (the “Traeger Opp.”).

GMG’s motion seeks summary determination of non-infringement with respect to the asserted claims of U.S. Patent No. 10,218,833 (the “’833 patent”) and U.S. Patent No. 10,158,720 (the “’720 patent”). With respect to the ’833 patent, for the reasons discussed herein, the motion is GRANTED. With respect to the ’720 patent, there are genuine disputes of material fact that preclude summary determination, and the motion is DENIED.

1 GMG attached updated claim charts and expert reports to its supplemental brief as exhibits 13a, 14a, and 15a. These exhibits were not considered for this order because the supplements were not authorized by Order No. 23 and circumvent the page limit set forth therein.

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I. BACKGROUND

The ’833 patent is one of the two patents asserted by Traeger in this investigation. See GMG Exhibit 1 (the ’833 patent). Traeger accuses GMG’s wireless pellet grills of infringing claims 1-3, 6-9, 11-14, 18, and 22-24 of the ’833 patent. See Notice of Investigation at 1-2 (Dec. 28, 2020); Complaint ¶ 36 (Nov. 24, 2020). A Markman order issued on July 28, 2021, construing certain terms of the asserted patent claims. Order No. 22.

A. The ’833 Patent

The asserted independent claims of the ’833 patent are claims 1, 11, and 18. Claim 1 is a method claim reciting:

1. A method for controlling an electronically-controlled wood-pellet grill using a software application on a mobile device, the electronicallycontrolled wood-pellet grill having at least one hardware controller, the method comprising:

receiving an indication from one or more remote computing systems indicating that the electronically-controlled wood-pellet grill is communicably connected to the one or more remote computing systems, wherein the one or more remote computing systems comprise a cloud service;

providing a notification in the software application indicating that the electronically-controlled wood-pellet grill is available to receive instructions;

receiving a user input at the software application indicating that a particular temperature is to be maintained by the electronically-controlled wood-pellet grill;

generating one or more instructions configured to cause a hopper to feed wood pellets into the electronically-controlled wood-pellet grill at a particular rate in order to maintain the particular temperature;

and sending the generated instructions to the electronically-controlled wood-pellet grill to activate the hopper, the generated instructions being interpreted and carried out on the electronically-controlled wood-pellet grill via the hardware controller.

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Claims 2, 6, 7, 8, and 9 depend from claim 1, and claim 3 depends from claim 2.

Claim 11 is directed to “non-transitory computer-readable media,” reciting:

11. One or more non-transitory computer-readable media that store computerexecutable instructions that, when executed, implement a method for controlling an electronically-ontrolled wood-pellet grill using a software application on a mobile device, the method comprising:

receiving an indication at the software application indicating that the electronically-controlled wood-pellet grill is attempting to communicate with one or more remote computing systems, wherein the one or more remote computing systems comprise a cloud service;

receiving a first user input at the software application indicating that the electronically-controlled wood-pellet grill is permitted to communicate with the one or more remote computing systems;

receiving an indication from at least one of the one or more remote computing systems indicating that the electronically-controlled wood-pellet grill is communicably connected to the one or more remote computing systems;

providing a notification in the software application indicating that the electronically-controlled wood-pellet grill is available to receive instructions;

receiving a second user input at the software application indicating that a particular temperature is to be maintained by the electronically-controlled wood-pellet grill;

generating one or more instructions configured to cause a hopper to feed wood pellets into the electronically-controlled wood-pellet grill at a particular rate in order to maintain the particular temperature;

and
sending one or more instructions to the electronically-controlled wood-pellet grill to activate the hopper, the one or more instructions being interpreted and carried out by a hardware controller on the electronically-controlled

Claims 12 and 13 depend from claim 11, and claim 14 depends from claim 13.

Claim 18 is directed to a “computer program product,” reciting:

18. A computer program product comprising one or more non-transitory computer storage media having thereon computer-executable instructions that, when executed by one or more processors of the computing system, cause the computing system to instantiate a user interface comprising the following:

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a first input field configured to receive input indicating whether an electronically-controlled wood-pellet grill is permitted to communicate with one or more remote computing systems, wherein the one or more remote computing systems comprise a cloud service;

a notification field configured to indicate whether the electronically-controlled wood-pellet grill is communicably connected to the one or more remote computing systems, and to further provide notifications indicating that the electronically-controlled wood-pellet grill is available to receive instructions;

a second input field configured to receive input indicating that a particular temperature is to be maintained by the wood-pellet grill;

an instruction generating indicator configured to indicate that one or more instructions configured to cause a hopper to feed wood pellets into the wood-pellet grill at a particular rate in order to maintain the particular temperature are being generated based on the received user input;

and a transmission indicator configured to indicate that the one or more instructions are being sent to the electronically-controlled wood-pellet grill to activate the hopper, the one or more instructions being interpreted and carried out by a hardware controller on the electronically-controlled woodpellet grill.

Claim 22 depends from claim 18, and claims 23 and 24 depend from claim 22.

The parties agreed on the construction of “cloud service” to mean a service for enabling on-demand network access to a shared pool of configurable computing resources. Order No. 22 at 11. The limitation in claims 1 and 11 requiring an “indication . . . that the . . . grill is communicably connected” was construed to mean an indication that the grill is connected for communication. Id. at 11-15. The limitation in claim 18 describing a “notification field configured to indicate whether the . . . grill is communicably connected” was construed to mean a field that indicates whether the grill is connected for communication. Id. The term “input . . . indicating whether/that” a grill “is permitted to communicate” in claims 11 and 18 was construed to mean an input indicating whether the grill is permitted to communicate. Id. at 15-16. The term “notification[s] . . . indicating that the . . . grill is available to receive instructions” in claims 5 1, 11, and 18 was construed to mean a notification indicating that the grill is available to receive instructions. Id. at 16-17. The term “instruction generating indicator” in claim 18 was construed to mean an indication that instructions are being generated. Id. at 18. The term “transmission indicator” in claim 18 was construed to mean an indication that instructions are being transmitted. Id. at 19. The term “generating one or more instructions” in claims 1 and 11 and the term “instructions . . . are being generated” in claim 18 were construed to mean generating one or more instructions. Id. at 19-20.

B. Accused Products

The accused GMG wireless pellet grills are part of a system (the “GMG System”) that includes (1) a mobile app (Android or iOS), (2) an API server (sometimes also referred to as the “Parse server”), (3) a database, (4) a grill server, and (5) a grill having a grill controller. GMG Memo. at 15-18. The GMG System was analyzed for infringement by Dr. Matthew B. Shoemake, an expert witness retained by Traeger for this investigation. See GMG Exhibit 16 (Shoemake Expert Report). GMG relies on the opinions of David H. Williams with respect to non-infringement. See GMG Exhibit 14 (Williams Expert Report). With respect to the infringement allegations at issue in the present motion, there are no relevant differences between different models of pellet grills and software versions. See GMG Exhibit 16 at ¶ 4. A representative GMG wireless pellet grill is the GMG Daniel Boone Prime Grill, which was analyzed for infringement by Dr. Shoemake.

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GMG Exhibit 16 at ¶ 3. A GMG mobile app is used to control the operation of GMG wireless
pellet grills.

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Id. at ¶ 24. The GMG wireless pellet grills can be operated in a “Server mode” where communications between the grill and the mobile app are conducted via a GMG server.

Id. at ¶ 24.

II. LEGAL STANDARDS

A. Summary determination

Commission Rule 210.18 governing summary determination states, in pertinent part:

The determination sought by the moving party shall be rendered if pleadings and any depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a summary determination as a matter of law.

19 C.F.R. § 210.18(b). By analogy to Fed. R. Civ. P. 56 (a), in deciding whether to grant summary determination the evidence “must be viewed in the light most favorable to the party opposing the motion . . . with doubts resolved in favor of the nonmovant.” Crown Operations 8 Int’l, Ltd. v. Solutia, Inc., 289 F.3d 1367, 1375 (Fed. Cir. 2002) (citations omitted); see also Xerox Corp. v. 3Com Corp., 267 F.3d 1361, 1364 (Fed. Cir. 2001) (“When ruling on a motion for summary judgment, all of the nonmovant’s evidence is to be credited, and all justifiable inferences are to be drawn in the nonmovant’s favor.”). The court should “assure itself that there is no reasonable version of the facts, on the summary judgment record, whereby the nonmovant could prevail, recognizing that the purpose of summary judgment is not to deprive a litigant of a fair hearing, but to avoid an unnecessary trial.” EMI Group N. Am., Inc. v. Intel Corp., 157 F.3d 887, 891 (Fed. Cir. 1998) (citations omitted). “In other words, ‘[s]ummary judgment is authorized when it is quite clear what the truth is’ . . . and the law requires judgment in favor of the movant based upon facts not in genuine dispute.” Paragon Podiatry Lab., Inc. v. KLM Labs., Inc., 984 F.2d 1182, 1185 (Fed. Cir. 1993) (citations omitted).

The moving party bears the initial burden to demonstrate the absence of a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52, 256 (1986). Once the moving party has met its initial burden, the burden shifts to the non-movant to show a genuine issue for trial—which means that the disputed fact is material under the correct view of the law and the evidence is such that a reasonable fact-finder could return a verdict for the nonmoving party). Id. See UM Corp. v. Tsuburaya Prods., No. CV 15-03764-AB, 2017 U.S. Dist. LEXIS 203303, at *7-8 (C.D. Cal. Sept. 8, 2017) (citing Owens v. Local No. 169, Assoc. of W. Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1987)).

B. Infringement

Section 337(a)(1)(B)(i) prohibits “the importation into the United States, the sale for importation, or the sale within the United States after importation by the owner, importer, or consignee, of articles that – (i) infringe a valid and enforceable United States patent or a valid and enforceable United States copyright registered under title 17.” 19 U.S.C. §1337(a)(1)(B)(i). The Commission has held that the word “infringe” in Section 337(a)(1)(B)(i) “derives its legal meaning from 35 U.S.C. § 271, the section of the Patent Act that defines patent infringement.” Certain Electronic Devices with Image Processing Systems, Components Thereof, and Associated Software, Inv. No. 337-TA-724, Comm’n Op. at 13-14 (December 21, 2011).

“An infringement analysis entails two steps. The first step is determining the meaning and scope of the patent claims asserted to be infringed. The second step is comparing the properly construed claims to the device accused of infringing.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370 (1996) (citation omitted). Literal infringement requires the patentee to prove that the accused device meets each and every limitation of the asserted claim(s). Frank’s Casing Crew & Rental Tools, Inc. v. Weatherford Int’l, Inc., 389 F.3d 1370, 1378 (Fed. Cir. 2004). “If even one limitation is missing or not met as claimed, there is no literal infringement.” Elkay Mfg. Co. v. EBCO Mfg. Co., 192 F.3d 973, 980 (Fed. Cir. 1999).

III. DISCUSSION

GMG moves for summary determination of non-infringement with respect to each of the asserted claims of the ’833 patent. GMG contends that the GMG System does not infringe certain limitations of each independent claim of this patent.

A. ’833 Patent Claim 1

GMG contends that the GMG System does not infringe three limitations of claim 1 of the ’833 patent: (1) an indication that the grill is “communicably connected;” (2) a notification that the grill is “available to receive instructions;” and (3) “generating one or more instructions.” With respect to the “communicably connected” and “available to receive instructions” limitations, the undersigned finds that there are genuine disputes of material fact that preclude

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summary determination. The parties’ arguments with respect to the “generating one or more instructions” limitation are addressed in detail below:

The fourth step in the method of claim 1 requires “generating one or more instructions configured to cause a hopper to feed wood pellets into the electronically-controlled wood-pellet grill at a particular rate in order to maintain the particular temperature.” ’833 patent, claim 1. The final step in claim 1 requires “sending the generated instructions to the electronicallycontrolled wood-pellet grill.” Id. The claim language “generating one or more instructions” was construed in accordance with its plain and ordinary meaning. Order No. 22 at 19-20.

Traeger’s infringement contentions identify functionality in the GMG mobile app that allows the user to set a temperature. GMG Exhibit 16 (Shoemake Expert Report) at ¶¶ 91, 192.

GMG Exhibit 16 (Shoemake Expert Report) ¶ 27. ______________________________________________________________________ Id.at ¶¶ 92,192.____________________________________________________________________________________________________________ Id. at ¶¶ 108-109, 193. Traeger submits that the temperature setting from the GMG mobile app thus infringes this limitation because it causes a hopper to feed wood pellets into the grill at a particular rate. Traeger Opp. at 13-15. Traeger does not make any arguments for infringement of this limitation under the doctrine of equivalents.

GMG argues that this limitation is not infringed because the temperature command sent to the GMG grill via the GMG server is not an “instruction[] configured to cause a hopper to feed wood pellets into the electronically-controlled wood-pellet grill at a particular rate.” GMG Memo. at 28-29; GMG Supp. at 9-10. GMG submits that the command only consists of a temperature, which is not an “instruction,” and that any “particular rate” for feeding wood pellets is generated by the controller in the GMG grill, not the GMG mobile app. Id. Mr. Williams explains that the GMG grill’s controller ____________________ ________________ __________ ________________________ GMG Exhibit 14 (Williams Expert Report) ¶ 117.

Traeger argues in opposition that the temperature commands generated by the GMG mobile app qualify as infringing “instructions.” Traeger Opp. at 14-15. Traeger submits that these temperature commands cause the GMG grill to feed wood pellets at a particular rate. Id.; GMG Exhibit 16 (Shoemake Expert Report) at ¶ 192.

Based on this record, the undersigned agrees with GMG that the accused instructions2 are not configured to cause a “particular rate” of wood pellet feeding, and accordingly, the GMG Grills do not infringe this limitation. The alleged instructions identified by Traeger are commands that only include the set temperature. Traeger argues that these temperature commands cause a hopper in the GMG grill to feed wood pellets into the grill at a particular rate to maintain a particular temperature, Traeger Opp. at 14, but Traeger’s contentions fail to identify any “particular rate.” Dr. Shoemake identifies commands in the controller for the GMG grill “that run a control (PID) that causes pellets to be sent from the pellet hopper to the tinder box,” GMG Exhibit 16 (Shoemake Expert Report) at ¶ 193, but he does not explain how the rate of the pellet supply is configured in the temperature commands. There is no dispute that the temperature commands only specify a temperature and do not include any “particular rate” for supplying pellets. Mr. Williams’s unrebutted testimony explains that the controller determines a pellet feed rate based ____________________ ________________ __________ ________________________, which are not part of the “generated instruction” that is sent to the grill. See GMG Exhibit 14 (Williams Expert Report) ¶ 117.

2 The parties dispute whether the temperature command is an “instruction,” but this issue does not need to be resolved on this motion. See Traeger Opp. at 14-15; compare Motion Exhibit 14 (Williams Expert Report) ¶ 116 to GMG Exhibit 16 (Shoemake Expert Report) at ¶¶ 91, 192. For the purposes of this order, the temperature command is considered to be an “instruction.”

There is no factual dispute regarding the operation of the GMG System, but the parties disagree on the requirements of the claim language “configured to cause a hopper to feed wood pellets into the . . . grill at a particular rate.” This claim construction dispute is amenable to summary determination. The undersigned agrees with GMG’s reading of the claim language, which requires that the generated instruction be “configured” to cause “a particular rate” of wood pellet feeding. See GMG Memo. at 29. The specification of the ’833 patent treats “temperature monitoring and control” and “hopper control for feeding pellets into the combustion area” as distinct functions that can be controlled by the user. See ’833 patent at 12:53-60 (“The user interface 630 may also include a second input field 610 configured to receive input indicating that one or more specification functions . . . . The functions may include temperature monitoring

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and control, gas burn rate, hopper control for feeding pellets into the combustion area . . . .”). The undisputed evidence shows that the GMG System ____________________ ________________ __________ ________________________ The pellet feed rate for the hopper in a GMG grill ___________________ _____ _________ ________________ __________ ________________________ In the GMG System, a ____________________ ________________ __________ ________________________ The temperature-only “instruction” that is generated and sent to the GMG grill thus cannot be “configured to cause a hopper to feed wood pellets into the . . . grill at a particular rate.”

Accordingly, the GMG System does not infringe the “generating one or more instructions” limitation of claim 1, and GMG is entitled to summary determination with respect to this claim and the claims that depend therefrom.

B. ’833 Patent Claim 11

GMG contends that the GMG System does not infringe four limitations of claim 11 of the ’833 patent: (1) an indication that the grill is “attempting to communicate;” (2) an indication that the grill is “communicably connected;” (3) a notification that the grill is “available to receive instructions;” and (4) “generating one or more instructions.” Based on the parties’ briefs, the undersigned finds that there are genuine disputes of material fact that preclude summary determination with respect to the “communicably connected” and “available to receive instructions” limitations. With respect to the “generating one or more instructions” limitation, summary determination of non-infringement is appropriate for the same reasons discussed above in the context of claim 1. The parties’ arguments with respect to the “attempting to communicate” limitation are discussed in detail below:

The first step in the claimed method of claim 11 requires “receiving an indication at the software application indicating that the electronically-controlled wood-pellet grill is attempting to communicate with one or more remote computing systems.” ’833 patent, claim 11.

Traeger identifies a step in the setup process for the GMG mobile app where the GMG grill connects to the user’s Wi-Fi network. Traeger Opp. at 15-18. Dr. Shoemake explains that the GMG mobile app “indicates that the GMG Grill is attempting to connect to the GMG serverover the Internet using the local Wi-Fi connection.”

GMG Exhibit 16 (Shoemake Expert Report) at ¶¶ 20-21. Traeger further identifies evidence that the GMG mobile app ____________________ ________________ __________ ________________________ Id. at ¶ 85. Traeger does not make any arguments for infringement of this limitation under the doctrine of equivalents.

GMG argues that the displayed message is not based on any indication received by the GMG mobile app—Mr. Williams explains that during this step of the setup process, ____________

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____________________ ________________  GMG Memo. at 30-31; GMG Exhibit 14 (Williams Expert Report) at ¶ 120. The GMG server communicates with the GMG mobile app but the status information that is provided ____________________ ________________ GMG Exhibit 14 (Williams Expert Report) at ¶ 121. GMG thus submits that this limitation is not infringed because there is no indication received by the GMG mobile app indicating that the grill is attempting to communicate with the GMG server. GMG Memo. at 30-31.

In opposition, Traeger argues that the “Attempting to connect” message displayed in the GMG mobile app, when considered in conjunction with ____________________ ________________ __________ ________________ , is sufficient evidence to at least create a dispute of material fact regarding this limitation. Traeger Opp. at 17-18.

Based on this record, the undersigned agrees with GMG that this limitation is not infringed. Traeger argues that Dr. Shoemake’s opinions regarding the message displayed in the GMG mobile app are sufficient to create a genuine dispute of material fact, but there is no evidence for the indication that is required by the claim language at issue. Dr. Shoemake fails to identify any communication received by the GMG mobile app indicating that the GMG grill is attempting to communicate with the GMG server. A displayed message regarding the grill’s connection is insufficient to make a prima facie case for infringement of this limitation, and Traeger fails to identify any genuine dispute of material fact. There is no evidence that the GMG mobile app receives an indication meeting this claim limitation.

Accordingly, because the GMG System does not infringe the “attempting to communicate” and the “generating one or more instructions” limitations of claim 11 of the ’833

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patent, GMG is entitled to summary determination with respect to this claim and the claims that depend therefrom.

C. ’833 Patent Claim 18

GMG contends that the GMG System does not infringe three limitations of claim 18 of the ’833 patent: (1) a notification field indicating whether the grill is “communicably connected” and that the grill is “available to receive instructions;” (2) an “instruction generating indicator;” and (3) a “transmission indicator.” Summary determination of non-infringement is appropriate with respect to the “instruction generating indicator,” for the same reasons discussed above with respect to the “generating one or more instructions” limitation of claim 1. The undersigned finds that there are genuine disputes of material fact that preclude summary determination with respect to the “transmission indicator.” The parties’ arguments with respect to the “notification field” limitation are discussed in detail below:

The second limitation of the claimed user interface of claim 18 is “a notification field configured to indicate whether the electronically-controlled wood-pellet grill is communicably connected to the one or more remote computing systems, and to further provide notifications indicating that the electronically-controlled wood-pellet grill is available to receive instructions.” ’833 patent, claim 18.

Traeger’s infringement contentions identify a button in the GMG mobile app that displays the word “Refresh” in green when a grill is connected to the GMG server.

See GMG Exhibit 16 (Shoemake Expert Report) at ¶ 169. If the “Refresh” button is pushed, the GMG mobile app ____________________ ________________ Id. at ¶ 170. When in
Server mode, the GMG mobile app ____________________ ________ ________ ________________ Id. at ¶¶ 171-77. The connectivity data ____________________ ________ ________ ________________ ______________ ______________ Id. at ¶ 178.

Id. at ¶ 178. Traeger submits that the data obtained from the GMG server, which includes ____________________ ________ ________ ________________ is an “indication” that the
grill “is communicably connected” to the GMG server. Traeger Opp. at 7-10. Traeger furthersubmits that the same “Refresh” button indicates that the grill is “available to receive instructions.” GMG Exhibit 16 (Shoemake Expert Report) at ¶ 253. Traeger does not make any arguments for infringement of this limitation under the doctrine of equivalents.

GMG argues that the language of claim 18 requires two distinct notifications to meet this limitation. GMG Memo. at 32; GMG Supp. at 11. Because Traeger fails to identify two different notifications, GMG submits that the GMG mobile app does not infringe this limitation. Id.; see GMG Exhibit 15 (Williams Rebuttal Report) at ¶ 115.

The primary dispute between the parties is one of claim construction, which is amenable to summary determination. The undersigned agrees with GMG that the language of claim 18 requires two distinct notifications for indicating whether the grill is “communicably connected” and “available to receive instructions.” As discussed in the Markman order, claim 18 recites a “notification field” that is configured to indicate a communicable connection and “to further provide notifications indicating that the . . . grill is available to receive instructions.” Order No. 22 at 17. Unlike claims 1 and 11, which describe the “communicably connected” indication as something received from the cloud service and the “available to receive instructions” notification as something provided in the software application, the plain language of claim 18 requires that two different notifications are displayed in the user interface. Id.

Traeger cites case law where the Federal Circuit has held that “a single element, feature, or mechanism can ordinarily satisfy multiple claim limitations, including by performing multiple claimed functions.” Google LLC v. Personal Audio, LLC, 743 Fed. App’x. 978, 985 (Fed. Cir. 2018). But the Federal Circuit has required separate structures where this is consistent with the claim language. See HTC Corp. v. Cellular Commc’ns Equip., LLC, 701 F. App’x 978, 982 (Fed. Cir. 2017) (“The separate naming of two structures in the claim strongly implies that the named entities are not one and the same structure.”); see also Becton, Dickinson & Co. v. Tyco Healthcare Grp., LP, 616 F.3d 1249, 1254 (Fed. Cir. 2010) (“Where a claim lists elements separately, the clear implication of the claim language is that those elements are distinct components of the patented invention.” (internal quotations omitted)). Here, claim 18 describes “a notification field configured to indicate whether the . . . grill is communicably connected . . . , and to further provide notifications indicating that the . . . grill is available to receive instructions.” ’833 patent, claim 18. The use of the term “further” and the plural “notifications” must be read to require two separate notifications in the user interface.

Traeger has only identified one notification in the GMG mobile app, the “Refresh” icon, to indicate whether the grill is communicably connected or available to receive instructions. There is no dispute that this is a single notification. Because the claim language requires two notifications in the notification field, the GMG mobile app does not infringe this limitation and GMG is thus entitled to summary determination of non-infringement for this claim.

Accordingly, because the GMG System does not infringe the “notification field” and the “instruction generating indicator” limitations of claim 18 of the ’833 patent, GMG is entitled to summary determination with respect to this claim and the claims that depend therefrom.

Because the GMG System does not infringe any of the independent claims of the ’833 patent, GMG is entitled to summary determination of non-infringement with respect to each asserted claim of the ’833 patent.

IV. CONCLUSION

For the reasons discussed above, the motion (1237-018) is hereby GRANTED-IN-PART and DENIED-IN-PART. GMG’s motion for summary determination is GRANTED with respect to claims 1-3, 6-9, 11-14, 18, and 22-24 of the ’833 patent. It is the initial determination of the undersigned that the accused GMG System does not infringe any asserted claim of the ’833 patent. The ’833 patent shall be terminated from the investigation, and accordingly, the parties shall not present any evidence at the hearing that relates solely to the ’833 patent.3 The motion is DENIED with respect to the ’720 patent.

3 The parties shall revise their witness statements and exhibit lists to remove any testimony and evidence that relates solely to the ’833 patent. Revised exhibits shall be submitted to the Chief Administrative Law Judge no later than Friday, September 10, 2021.

Pursuant to Commission Rule 210.42(h), this initial determination shall become the determination of the Commission unless a party files a petition for review of the initial determination pursuant to Commission Rule 210.43(a), or the Commission, pursuant to Commission Rule 210.44, orders, on its own motion, a review of the initial determination or certain issues contained herein. 19 C.F.R. § 210.42(d).

This order has been issued with a confidential designation. Within seven days of the date of this document, the parties must jointly submit a statement to the attorney advisors for this investigation, Ted Jou ([email protected]) and Michael Maas ([email protected]), stating whether or not each party seeks to have any portion of this document redacted from the public version. Should any party seek to have any portion of this document redacted from the public version thereof, the parties shall attach to the statement a copy of a joint proposed public version of this document indicated with red brackets any portion asserted to contain confidential business.4 To the extent possible, the proposed redacting should be made electronically, in a PDF of the issued order, using the “Redact Tool” within Adobe Acrobat, wherein the proposed redactions are submitted as “marked” but not yet “applied.” The parties’ submission concerning the public version of this document should not be filed with the Commission Secretary.

4 If the parties submit excessive redactions, they may be required to provide an additional written statement, supported by declarations from individuals with personal knowledge, justifying each proposed redaction and specifically explaining why the information sought to be redacted meets the definition for confidential business information set forth in Commission Rule 201.6(a). 19 C.F.R. § 201.6(a).

SO ORDERED.

 

 

 

Charles E. Bullock
Chief Administrative Law Judge

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I, Lisa R. Barton, hereby certify that the attached INITIAL DETERMINATION has been served upon the following parties as indicated, on September 3, 2021.

 

 

 

 

Lisa R. Barton, Secretary
U.S. International Trade Commission
500 E Street, SW, Room 112
Washington, DC 20436

 

 

On Behalf of Complainant Traeger Pellet Grills LLC:
Jay H. Reiziss, Esq.
MCDERMOTT WILL & EMERY, LLP
500 North Capitol Street, NW
Washington, DC 20001
Email: [email protected]e.com
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On Behalf of Respondent GMG Products LLC:
Andrew F. Pratt, Esq.
DEVLIN LAW FIRM LLC
1526 Gilpin Avenue
Wilmington, DE 19806
Email: [email protected]
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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was served on the following parties in the manner indicated below on September 9, 2021:

The Honorable Lisa Barton, Secretary
U.S. International Trade Commission
500 E Street, SW, Room 112
Washington, D.C. 20436
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The Honorable Charles E. Bullock
Chief Administrative Law Judge
U.S. International Trade Commission
500 E Street, SW
Washington, D.C. 20436
[email protected] (Ted Jou)
[email protected] (Michael Maas)
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Jay H. Reiziss
McDermott Will & Emery LLP
500 North Capitol Street, NW
Washington, DC 20001
T: 202.756.8000
[email protected]
Counsel for Complainant Traeger Pellet Grills LLC
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s/ Lauren Mostrom

September 9, 2021

 

 

 

The Honorable Lisa Barton
Acting Secretary
U.S. International Trade Commission
500 E Street, S.W., Room 112A
Washington, D.C. 20436

Re: In the Matter of Certain Cloud-Connected Wood-Pellet Grills and
Components Thereof; Investigation No. 337-TA-1237

Dear Secretary Barton:

Enclosed please find the Public Version of Order No. 28 (Granting in Part GMG’s Motion for
Summary Determination).

Please don’t hesitate to contact us if you need any additional information regarding this matter.

Respectfully submitted,
/s/ Andrew F. Pratt
Andrew F. Pratt