Nestle appealed, and we vacated the Board's decision for applying an incorrect claim construction of the term "aseptic." Nestle USA, Inc. v. Steuben Foods, Inc., 686 Fed.Appx. 917, 920 (Fed. Cir. 2017).

Defendant cites to Phillips, where the Federal Circuit stated that “the inventor's lexicography governs.” 415 F.3d at 1316. Defendant also relies on Nestle USA, Inc. v. Steuben Foods, Inc., 686 Fed.Appx. 917, 919 n.l (Fed. Cir. 2017), where the Federal Circuit noted, “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.” The quoted footnote is in a non-precedential case. Nonetheless, I think Defendant correctly relies upon the footnote, as I believe it correctly describes how lexicography works.

(Oystar Action, Dkt. 287; Shibuya Action, Dkt. 392; GEA Action, Dkt. 501; Nestlé Action, Dkt. 330; Jasper Action, Dkt. 240) (the "Claim Construction D&O"). In the Claim Construction D&O, Judge McCarthy concluded as follows: (1) "aseptically disinfecting" cannot be construed to preclude the use of oxonia; and (2) the term "aseptically disinfecting" is properly construed "to mean the use of a sterilant capable of being approved by the FDA, as of the effective patent filing date, to satisfy the ‘FDA level of aseptic’ defined by the Federal Circuit in Nestle USA, Inc. v. Steuben Foods, Inc., 686 Fed. App'x 917, 918-19 (Fed. Cir. 2017)." (Id. at 2-5).

TurboCare Division of Demag Delaval Turbomachinery Corp. v. General Electric Co., 264 F.3d 1111, 1118 (Fed. Cir. 2001). To summarize, I construe the phrase "aseptically disinfecting" to mean the use of a sterilant capable of being approved by the FDA, as of the effective patent filing date, to satisfy the "FDA level of aseptic" defined by the Federal Circuit in Nestle USA, Inc. v. Steuben Foods, Inc., 686 Fed. App'x 917, 918-19 (Fed. Cir. 2017). B. Can the Patents Validly be Applied to Cover the Use of Oxonia?