Case 1:16-cv-10142-DJC Document 99 Filed 07/11/17 Page 1 of 50
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`KEURIG GREEN MOUNTAIN, INC.,
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`Plaintiff and Counterclaim Defendant,
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`TOUCH COFFEE & BEVERAGES, LLC,
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`Defendant and Counterclaim Plaintiff.
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`__________________________________________)
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`Civil Action No.: 16-cv-10142-DJC
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`MEMORANDUM AND ORDER
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`July 11, 2017
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`CASPER, J.
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`I.
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`
`Introduction
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`Plaintiff and Counterclaim Defendant Keurig Green Mountain, Inc. (“Keurig”) filed this
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`lawsuit for patent infringement against Defendant and Counterclaim Plaintiff Touch Coffee &
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`Beverages, LLC (“Touch”), alleging that Touch was infringing its ‘260 patent and seeking a
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`declaratory judgment that it was not infringing four of Touch’s patents (the ‘343 patent, ‘149
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`patent, ‘150 patent and the ‘151 patent). D. 1. Touch’s counterclaim asserts that Keurig is
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`infringing four of Touch’s patents and seeks a declaratory judgment that Touch is not infringing
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`Keurig’s ‘260 patent and that Keurig’s ‘260 patent is invalid. D. 30. The parties now seek
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`construction of several disputed claim terms. D. 87; D. 88; D. 94; D. 95; D. 97. After extensive
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`briefing and a Markman hearing, D. 98, the Court’s claim construction follows.
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`1
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`Case 1:16-cv-10142-DJC Document 99 Filed 07/11/17 Page 2 of 50
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`II.
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`Standard of Review
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`Claim construction is a question of law. See Markman v. Westview Instruments, Inc., 517
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`U.S. 370, 372, 388-89 (1996). When considering the construction of disputed terms, “the
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`analytical focus of claim construction must begin, and remain centered, on the language of the
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`claims themselves.” ACTV, Inc. v. Walt Disney Co., 346 F.3d 1082, 1088 (Fed. Cir. 2003) (citing
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`Tex. Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1201-02 (Fed. Cir. 2002)). That is, the
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`Court must construe the terms in a manner that “stays true to the claim language and most naturally
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`aligns with the patent’s description of the invention.” Phillips v. AWH Corp., 415 F.3d 1303, 1316
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`(Fed. Cir. 2005) (quoting Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1250
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`(Fed. Cir. 1998)). The Court construes “the meaning that the term would have to a person of
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`ordinary skill in the art in question at the time of . . . the effective filing date of the patent
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`application” because courts presume that “inventors are typically persons skilled in the field of the
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`invention” and that the patents themselves are “addressed to . . . others of skill in the pertinent art.”
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`Id. at 1313; see ACTV, 346 F.3d at 1088. The Court thus seeks to clarify the meaning of each
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`disputed term by examining “the words of the claims themselves, the remainder of the
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`specification, the prosecution history, and extrinsic evidence concerning relevant scientific
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`principles, the meaning of technical terms, and the state of the art.” Phillips, 415 F.3d at 1314
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`(quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed.
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`Cir. 2004)).
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`A.
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`The Words of the Claims
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`The Court begins its claim construction by looking at the words of the claims. “[T]he
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`claims of a patent define the invention to which the patentee is entitled the right to exclude.” Id.
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`at 1312 (quoting Innova/Pure Water, 381 F.3d at 1115). Claims “are generally given their ordinary
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`and customary meaning.” Id. That is, “[a] court may construe a claim term to have its plain
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`Case 1:16-cv-10142-DJC Document 99 Filed 07/11/17 Page 3 of 50
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`meaning when such a construction resolves a dispute between the parties.” In re Body Sci. LLC
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`Patent Litig., 167 F. Supp. 3d 152, 156 (D. Mass. 2016) (citing O2 Micro Int’l Ltd. v. Beyond
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`Innovation Tech. Co., 521 F.3d 1351, 1361 (Fed. Cir. 2008); U.S. Surgical Corp. v. Ethicon, Inc.,
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`103 F.3d 1554, 1568 (Fed. Cir. 1997)). In some circumstances, however, “the context in which a
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`term is used in the asserted claim can be highly instructive” as to the appropriate meaning of that
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`term. Phillips, 415 F.3d at 1314. For instance, when a claim term is used consistently throughout
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`the patent, the meaning of that term in two distinct claims is likely to be the same. In re Body Sci.
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`LLC Patent Litig., 167 F. Supp. 3d at 157 (citing Phillips, 415 F.3d at 1314). Similarly, “the
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`presence of a dependent claim that adds a particular limitation gives rise to a presumption that the
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`limitation in question is not present in the independent claim.” Phillips, 415 F.3d at 1315 (citing
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`Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 910 (Fed. Cir. 2004)). Finally, “claims are
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`interpreted with an eye towards giving effect to all terms in the claim.” Bicon, Inc. v. Straumann
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`Co., 441 F.3d 945, 950 (Fed. Cir. 2006).
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`B.
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`The Specification
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`Claims “are part of ‘a fully integrated written instrument,’ consisting principally of a
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`specification that concludes with the claims.” Phillips, 415 F.3d at 1315 (quoting Markman, 52
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`F.3d at 978). The specification is the patentee’s description of the invention and defines “the scope
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`and outer boundary” of the claims. On Demand Mach. Corp. v. Ingram Indus., Inc., 442 F.3d
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`1331, 1338-40 (Fed. Cir. 2006). As a result, the Court must read the claims in light of the
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`specification of which they are a part because the construction of the claims cannot be broader in
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`scope than the invention set forth in the patent’s specification. See Lexington Luminance LLC v.
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`Amazon.com Inc., 601 F. App’x 963, 970 (Fed. Cir. 2015); On Demand Mach., 442 F.3d at 1338-
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`40; Phillips, 415 F.3d at 1315. Indeed, because the specification’s purpose is to “teach and enable
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`3
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`Case 1:16-cv-10142-DJC Document 99 Filed 07/11/17 Page 4 of 50
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`those of skill in the art to make and use the invention and to provide a best mode for doing so” it
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`is “appropriate for a court . . . to rely heavily upon the written description for guidance as to the
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`meaning of the claims.” Phillips, 415 F.3d at 1317, 1323. Nevertheless, courts must be careful
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`not to “import[] limitations from the specification into the claim,” id. at 1323, because a patent’s
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`“claims, not specification embodiments, define the scope of patent protection,” Kara Tech. Inc. v.
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`Stamps.com Inc., 582 F.3d 1341, 1348 (Fed. Cir. 2009). In the end, the construction that is the
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`most correct is the one that best reflects the claim language and the patent’s description of the
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`invention. Id. at 1316 (citing Renishaw, 158 F.3d at 1250).
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`C.
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`The Patent Prosecution
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`“[A] court should also consider the patent’s prosecution history, if it is in evidence,” id. at
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`1317, because it is the next best indicator of term meaning. In re: Body Sci. LLC Patent Litig.,
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`167 F. Supp. 3d at 158; see PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1366-67 (Fed. Cir.
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`2007). The prosecution history includes the complete record of the proceedings before the PTO
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`and incorporates the prior art examined during the patent’s prosecution. Phillips, 415 F.3d at 1317.
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`This history may shed light on a term’s meaning because it “can provide further evidence of how
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`the inventor understood the claimed invention,” Lexington, 601 F. App’x at 970 (citing Phillips,
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`415 F.3d at 1317), and “whether the inventor limited the invention in the course of prosecution,
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`making the claim scope narrower than it would otherwise be,” Phillips, 415 F.3d at 1317 (citing
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`Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582-83 (Fed. Cir. 1996)). The Court’s
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`reliance upon the patent prosecution, however, is limited. That is, “because the prosecution history
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`represents an ongoing negotiation between the PTO and the applicant, rather than the final product
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`of that negotiation, it often lacks the clarity of the specification and thus is less useful for claim
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`4
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`Case 1:16-cv-10142-DJC Document 99 Filed 07/11/17 Page 5 of 50
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`construction purposes.” Id. Accordingly, the Court must give less weight to the prosecution
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`history than the weight given to the claims and the specifications. Id.
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`D.
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`Extrinsic Evidence
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`The Court may further consider extrinsic evidence “if the court deems [such evidence]
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`helpful in determining ‘the true meaning of language used in the patent claims.’” Id. at 1318
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`(quoting Markman, 52 F.3d at 980). Extrinsic evidence “consists of all evidence external to the
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`patent and prosecution history, including expert and inventor testimony, dictionaries, and learned
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`treatises.” Id. at 1317 (quoting Markman, 52 F.3d at 980). Courts look to this information when
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`it can assist in educating the Court about “the field of the invention” and “what a person of ordinary
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`skill in the art would understand claim terms to mean.” Id. at 1319. For instance, expert testimony
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`can provide useful background on the technology in question, shed light on how the invention
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`works and further ensure that the Court’s understanding of the patent’s technical aspects is aligned
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`with that of a person with skill in the art. Id. at 1318.
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`The use of extrinsic evidence, however, is not without bounds. In examining the meaning
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`of each disputed term, the court must give more weight to intrinsic evidence (i.e., the language of
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`the claims, the specifications and the prosecution history) than it does to extrinsic evidence. Sky
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`Techs., LLC v. Ariba, Inc., 491 F. Supp. 2d 154, 156 (D. Mass. 2007). Indeed, “extrinsic evidence
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`is less significant than the intrinsic record,” Lexington, 601 F. App’x at 970, because it is generally
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`considered less reliable than the patent and the prosecution history in determining the legally
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`operative meaning of the claim language specific to the particular patent at issue, Phillips, 415
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`F.3d at 1317-19. For this reason, the Court cannot use extrinsic evidence to “contradict claim
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`meaning that is unambiguous in light of the intrinsic evidence.” Id. at 1324. That is, the Court
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`cannot place “undue reliance on extrinsic evidence” because it “poses the risk that it will be used
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`Case 1:16-cv-10142-DJC Document 99 Filed 07/11/17 Page 6 of 50
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`to change the meaning of claims in derogation of the ‘indisputable public records consisting of the
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`claims.’” Id. at 1319 (quoting Southwall Techs., Inc., v. Cardinal IG Co., 54 F.3d 1570, 1578
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`(Fed. Cir. 1995)).
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`III. The Patents at Issue
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`This lawsuit involves patents addressing technology for single-serve beverage brewing
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`systems. D. 87-2 (‘343 patent); D. 87-3 (‘149 patent); D. 87-4 (‘150 patent); D. 87-5 (‘151 patent);
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`D. 87-10 (‘260 patent). Keurig alleges that Touch has and continues to infringe at least claim 5 of
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`its ‘260 patent by manufacturing and selling Touch brewing systems and components thereof,
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`including the Supercharger and Touch XLarge cups. D. 1 ¶¶ 84-90. Touch counterclaims that
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`Keurig is infringing Touch’s ‘343 patent, ‘149 patent, ‘150 patent and ‘151 patent by making and
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`selling the Keurig 2.0 Brewer and components thereof and inducing customers to purchase the
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`Keurig 2.0 Brewer, K-Cups and K-Carafe pods. D. 30 ¶¶ 57-88.
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`Keurig filed its ‘260 patent on April 3, 2002 and the patent was issued on December 2,
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`2003. D. 87-10 at 2. Touch filed all of its patents relevant to this case on November 14, 2014. D.
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`30-1 at 2; D. 30-2 at 2; D. 30-3 at 2; D. 30-4 at 2. Touch’s ‘343 patent was issued on September
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`29, 2015, D. 30-1 at 2, whereas the ‘149, ‘150 and ‘151 patents were issued on October 6, 2015.
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`D. 30-2 at 2; D. 30-3 at 2; D. 30-4 at 2.
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`IV.
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`Procedural History
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`Keurig filed this patent infringement lawsuit on February 1, 2016. D. 1. Touch filed
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`counterclaims against Keurig. D. 6, 30. Touch then moved for preliminary injunction, requesting
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`that this Court enjoin Keurig from distributing and selling Keurig 2.0 Brewing System brewers.
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`D. 7. After allowing certain expedited discovery, the Court denied Touch’s motion for preliminary
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`6
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`Case 1:16-cv-10142-DJC Document 99 Filed 07/11/17 Page 7 of 50
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`injunction.1 D. 19; D. 68. After claim construction briefing, the Court held a Markman hearing
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`and took the matter under advisement. D. 98.
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`V.
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`Construction of Disputed Terms
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`The parties dispute the meaning of the following terms and the Court resolves these
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`disputes as discussed below.2
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`A.
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`Disputed Terms in Touch’s Patents
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`Beverage Ingredient/Beverage Grind
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`1.
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`Term
`Beverage Ingredient/Grind
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`Touch’s Construction
`An
`ingredient
`to brew a
`beverage
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`
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`Keurig’s Construction
`Ingredient
`for
`making
`beverage,
`including
`tea,
`cocoa, milk, soup, and coffee.
`When the beverage ingredient
`is ground coffee, the grind size
`must be
`that specified at
`10:55-11:3 and depicted in
`Figure 8B and not
`that
`specified at 10:39-54 and
`depicted in Figure 8A
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`[For the ‘343 patent, the first
`and second column and line
`citations
`in
`this proposed
`construction are 10:58-11:6
`and 10:42-57, respectively]
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`1 Although the Court expressed initial impressions on possible constructions of disputed
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`terms during the preliminary injunction phase, those initial claim constructions are subject to
`revision as the case develops. Printguard, Inc. v. Anti-Marking Sys., Inc., 535 F. Supp. 2d 189,
`197 (D. Mass. 2008); Acoustic Processing Tech., Inc. v. KDH Elec. Sys. Inc., 697 F. Supp. 2d
`146, 155 (D. Me. 2010) (citing Sofamor Danek Grp., Inc. v. DePuy-Motech, Inc., 74 F.3d 1216,
`1221 (Fed. Cir. 1996)).
`2 The parties have resolved their dispute as to another term. That is, the parties agree that
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`the term “longitudinally extending discontinuity” should be construed as “a break in continuity of
`the cartridge sidewall along at least part of the sidewall length.” D. 97 at 2. The Court adopts this
`agreed-upon construction.
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`Case 1:16-cv-10142-DJC Document 99 Filed 07/11/17 Page 8 of 50
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`The parties dispute the meaning of the term “beverage ingredient” and “beverage grind” as
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`they appear in claims 1-3, 7-10, 13 and 18-19 from the ‘343 patent; claims 1-7, 10, 12-19, 22-26
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`and 28 from the ‘149 patent; claims 1, 2, 4-8 and 10-15 from the ‘150 patent; and claims 1-4, 6-
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`11, 13-18 and 20-22 from the ‘151 patent.3 D. 97-1 at 2, 6.
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`Those claims generally use the terms “beverage ingredient” and “beverage grind” in the
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`same manner throughout the four patents. For instance, claim 1 in the ‘149 patent covers “[a]
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`method of brewing a beverage from either one of a first beverage cartridge having a beverage
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`ingredient therein and a second beverage cartridge having a beverage ingredient therein.” ‘149
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`patent, 33:27-30. Similarly, claim 1 of the ‘150 patent covers, in relevant part, a method of brewing
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`a beverage with a brewer with certain qualities such that the device can create a drink from “a first
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`beverage cartridge having beverage grind therein” and with the ability to brew a beverage from “a
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`second beverage cartridge having beverage grind therein.” ‘150 patent, 33:18-40. In essence, the
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`term is used in the claims when describing the mixture to be included in the beverage cartridge
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`that will ultimately be pierced and used to brew a single-serve drink. While the parties agree that
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`the term refers to multiple types of drinks, see, e.g., D. 87 at 8-9, D. 88 at 22, they dispute whether
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`the term has a more limited definition as to ground coffee, D. 97-1 at 6. That is, Touch urges the
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`Court to use an ordinary definition of “beverage ingredient” or “beverage grind” such that it means
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`“[a]n ingredient to brew a beverage” as to any drinks including coffee. D. 87 at 8. Alternatively,
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`Keurig contends that these terms only define a particular sized coffee grounds as explained in the
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`patent specification. D. 88 at 22-24.
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`3 Unless otherwise indicated, the parties’ dispute as to the remaining terms in this Order
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`are terms that are used within the patent claims listed above.
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`8
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`Case 1:16-cv-10142-DJC Document 99 Filed 07/11/17 Page 9 of 50
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`
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`Here, the Court adopts Touch’s construction that “beverage ingredient” or “beverage
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`grind” indicates “an ingredient to brew a beverage.” First, this definition accords with the claim
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`language itself, which expresses no restrictions as to the coffee grind size that could constitute the
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`beverage ingredient or grind. See, e.g., ‘149 patent, 33:25-44; ‘150 patent, 33:18-40. As a result,
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`this definition comports with the ordinary meaning of the claim language when considered as a
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`broadly written term with no immediate modifiers. See Johnson Worldwide Assocs., Inc. v. Zebco
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`Corp., 175 F.3d 985, 989 (Fed. Cir. 1999).
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`Further, the remainder of the intrinsic evidence, including the language in the specification,
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`fails to overcome the “heavy presumption in favor of [assigning] the ordinary meaning” to the
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`claim language. Id. First, the specification includes language that further confirms that “beverage
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`ingredient” and “beverage grind” should have the ordinary definition as the invention is first
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`described as being directed “to a brewing system for making hot beverages such as coffee, tea,
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`cocoa, milk, and soup.” ‘149 patent, 1:18-19. Here, the patent makes no distinction as to the
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`necessity that the brewing system is limited to a particular coffee grind size. Moreover, there are
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`several other instances in which the specification specifically describes the “beverage ingredient”
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`or “beverage grind” when referring to coffee grounds and does not designate the grind size
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`formulations proposed in Keurig’s construction. For instance, the invention summary explains
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`that “the first chamber may be packed with a first beverage grind such as coffee grind,” ‘149 patent,
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`5:10-11, without indicating any limitation as to the sizes of the coffee grinds to be used in
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`conjunction with the invention covered by the patent.
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`To support its proffered construction, Keurig highlights that the specification in each of the
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`relevant patents uses two diagrams, Figures 8A and 8B, to contrast the distribution of coffee grind
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`sizes in a typical K-Cup and the distribution of coffee grind sizes to be used as the beverage grind
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`9
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`Case 1:16-cv-10142-DJC Document 99 Filed 07/11/17 Page 10 of 50
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`in accord with Touch’s invention. D. 88 at 22-24. The Touch patents do distinguish the coffee
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`grind sizes used in a K-Cup and those that they suggest should be used alongside this invention:
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`the specification includes a graph that represents the contrast in grind size formulations between
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`the K-Cup and the ideal formulation for the Touch invention and provides the details of a
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`controlled experiment that found that the proposed coffee grind formulation produced coffee that
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`was eight percent stronger than the K-Cup formulation. ‘149 patent, 10:39-12:45. The discussion
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`of coffee grind sizes, however, does not necessitate defining the terms “beverage ingredient” and
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`“beverage grind” as narrowly as Keurig urges.
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`First, the claim language expressed that “the invention is not to be restricted except in light
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`of the attached claims and their equivalents.” See id. at 33:23-24. As stated, none of the claims
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`circumscribe “beverage ingredient” or “beverage grind” by a certain coffee grind size. See Pfizer,
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`Inc. v. Ranbaxy Labs. Ltd., 457 F.3d 1284, 1290 (Fed. Cir. 2006) (explaining that restricting the
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`claim based upon illustrative examples was improper because the specification stated that the
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`examples were “not to be read as limiting the scope of the invention”). Second, the fact “[t]hat
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`claims are interpreted in light of the specification does not mean that everything expressed in the
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`specification must be read into all of the claims.” Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d
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`1313, 1326 (Fed. Cir. 2002) (quoting Raytheon Co. v. Roper Corp., 723 F.2d 951, 957 (Fed. Cir.
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`1983)). That is, a party “cannot overcome the ‘heavy presumption’ that a claim term takes on its
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`ordinary meaning simply by pointing to the preferred embodiment or other structures or steps
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`disclosed in the specification or prosecution history.” Id. (quoting CCS Fitness, Inc. v. Brunswick
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`Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)). Although Keurig argues that Touch was acting as
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`its own lexicographer in defining “beverage ingredient” and “beverage grind” and those terms
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`must thus take on a more specific meaning, that is only true when a patent-holder “clearly
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`10
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`Case 1:16-cv-10142-DJC Document 99 Filed 07/11/17 Page 11 of 50
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`express[es] an intent to redefine the term” in dispute. Hill-Rom Servs., Inc. v. Stryker Corp., 755
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`F.3d 1367, 1371 (Fed. Cir. 2014) (quoting Thorner v. Sony Comput. Entm’t Am. LLC, 669 F.3d
`
`1362, 1365 (Fed. Cir. 2002)). No such intent can be gleaned from the Touch patents.
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`Keurig still contends, however, that its more limited construction is appropriate because
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`the Touch patents describe Figure 8B as a graph representing “distribution of coffee grind sizes
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`according to this invention.” D. 88 at 22-24; see ‘343 patent, 6:42-43. “It is true that, in some
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`circumstances, a patentee’s consistent reference to a certain limitation or a preferred embodiment
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`as ‘this invention’ or the ‘present invention’ can serve to limit the scope of the entire invention,
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`particularly where no other intrinsic evidence suggests otherwise.” Absolute Software, Inc. v.
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`Stealth Signal, Inc., 659 F.3d 1121, 1136 (Fed. Cir. 2011). However, the “use of the phrase
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`‘present invention’ or ‘this invention’ is not always so limiting, such as where the references to a
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`certain limitation as being the ‘invention’ are not uniform or where other portions of the intrinsic
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`evidence do not support applying the limitation to the entire patent.” Id. at 1136-37 (collecting
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`cases). That is, the use of these phrases does not automatically limit the meaning of claim terms
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`in all circumstances. Netcraft Corp. v. eBay, Inc., 549 F.3d 1394, 1398 (Fed. Cir. 2008).
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`After considering these guideposts, the Court concludes that it need not adopt Keurig’s
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`more limited construction for coffee grind because of the patents’ usage of “this invention.” First,
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`the Federal Circuit has articulated that the use of “in accordance with this invention” is highly
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`suggestive when placed in the Summary of the Invention because it suggests that the limiting
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`principles apply to the entire invention and not merely one or more embodiments. See TriStrata,
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`Inc. v. Microsoft Corp., 594 F. App’x 653, 656 (Fed. Cir. 2014). Here, however, the singular
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`discussion of the coffee grind formulation is not located in the summary of the invention. See ‘149
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`patent, 10:55-12:45. Instead, here, where the summary of the invention discusses the “beverage
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`11
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`Case 1:16-cv-10142-DJC Document 99 Filed 07/11/17 Page 12 of 50
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`grind” or “beverage ingredient,” it says, without elaboration, that certain chambers of the device
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`“may be packed with beverage grind” such as “coffee grind” or “powder cream.” See id. at 5:10-
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`13 (making no mention of coffee grind or coffee grind formulation specifications necessary for the
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`beverage ingredient or grind).
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`Moreover, the construction of “beverage ingredient” or “beverage grind” stands on
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`different ground from cases in which the phrase “present invention” or “this invention” compelled
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`construction of a claim term with a more limited definition consistent with a particular description
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`or embodiment. In those cases, each of the patents provided a circumscribed definition of a claim
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`term and then repeatedly used that claim term with this limited construction, convincing the
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`Federal Circuit that the terms at issue should be construed uniformly with that same limitation.
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`For example, in Edwards Lifesciences LLC v. Cook Inc., 582 F.3d 1322, 1331 (Fed. Cir. 2009),
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`the Federal Circuit construed the term “graft” to mean an intraluminal device because “the
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`specification frequently describes an ‘intraluminal graft’ as ‘the present invention; or ‘this
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`invention,’ indicating an intent to limit the invention to intraluminal devices.” Likewise, in Lydall
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`Thermal/Acoustical, Inc. v. Fed.-Mogul Corp., 344 F. App’x 607, 613-14 (Fed. Cir. 2009), the
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`court held that “the specification repeatedly describes the batt as having an insulating layer
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`disposed between two binding layers” and that this “consistent description” makes clear that the
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`“fibrous batt of fibers” must have three layers. This is also the case for Honeywell International
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`Inc. v. ITT Industries, Inc., 452 F.3d 1312, 1313, 1318 (Fed. Cir. 2006), where the court construed
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`“fuel injection system component” to mean fuel filter because the description referred to the fuel
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`filter as the invention on at least four different occasions. This is distinct from the Touch patents,
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`which only discuss the coffee grind formulations once in the entirety of the patents and refrain
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`from applying or mentioning any coffee grind size limitations when describing or discussing the
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`Case 1:16-cv-10142-DJC Document 99 Filed 07/11/17 Page 13 of 50
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`“beverage grind” or “beverage ingredient” throughout the remainder of the abstract, specification
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`and claims.
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`Keurig’s proposed construction also asks the Court to construe “beverage grind” and
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`“beverage ingredient” to exclude the description related to Figure 8A, the coffee grind sizes
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`generally provided in a single-serve cartridge sold by Green Mountain Coffee Roasters and
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`provided in a K-Cup. D. 88 at 22-24. The Federal Circuit has recognized that “the specification
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`may reveal an intentional disclaimer, or disavowal, of claim scope by the inventor” by making
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`clear that the invention does not include a particular feature. Openwave Sys., Inc. v. Apple Inc.,
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`808 F.3d 509, 513 (Fed. Cir. 2015) (quoting Phillips, 415 F.3d at 1316). The standard for
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`disavowal of claim scope, however, is “exacting” and requires the Court to conclude that “the
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`specification is ‘both so clear as to show reasonable clarity and deliberateness, and so unmistakable
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`as to be unambiguous evidence of disclaimer.’” Id. (quoting Dealertrack, Inc. v. Huber, 674 F.3d
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`1315, 1322 (Fed. Cir. 2012)). To hold disavowal of claim scope through the disparagement of a
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`particular characteristic, the Court focuses on whether “the specification goes well beyond
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`expressing the patentee’s preference” and “its repeated derogatory statements” about a particular
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`feature demonstrate disavowal. Id. Here, the Court cannot conclude that the Touch patents have
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`“repeated derogatory statements” that make clear that the invention disclaims the coffee grind size
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`generally used in K-Cups, particularly where the coffee grind size is mentioned only once in each
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`patent.
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`Finally, Keurig’s reliance upon the interpretation of the patent by its expert, Slocum, does
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`not compel an alternative outcome. As explained, the Court must give greater weight to the
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`intrinsic evidence available, Lexington, 601 F. App’x at 970, and cannot use extrinsic evidence to
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`contradict claim meaning that is otherwise unambiguous, Phillips, 415 F.3d at 1324.
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`Case 1:16-cv-10142-DJC Document 99 Filed 07/11/17 Page 14 of 50
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`For the foregoing reasons, the Court construes “beverage ingredient” and “beverage grind”
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`as “an ingredient to brew a beverage.”
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`2.
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`Vertically Offset
`
`Term
`Vertically Offset
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`Touch’s Construction
`Spaced above or below
`
`Keurig’s Construction
`Positioned along and spaced
`apart on a vertical line that
`passes
`through
`the
`longitudinal
`axes of
`the
`needles
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`The parties dispute the meaning of the term “vertically offset” as it appears in claims 1-3,
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`7-10, 13 and 18-19 from the ‘343 patent; claims 1-7, 13-19, 24-26 and 28 from the ‘149 patent;
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`claims 1, 2 and 4-8 from the ‘150 patent; and claims 1-4, 6-11, 13-18 and 20-22 from the ‘151
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`patent. D. 97-1 at 2, 7.
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`Touch urges the Court to adopt a construction of the term “vertically offset” based on the
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`ordinary meaning of the term’s constituent parts. D. 87 at 10. Because “vertical” generally means
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`“above or below” and “offset” generally means “spaced” or “spaced apart,” Touch proposes a
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`construction of the “vertically offset” as “spaced above or below.” Id. Touch also suggests that
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`the word “vertically” is intended only to distinguish from other ways in which the patent might
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`require that the outlet needles be offset, such as “horizontally offset.” D. 94 at 21-22. In Keurig’s
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`view, “vertically offset” must mean “positioned along and spaced apart on a vertical line that
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`passes through the longitudinal axes of the needles.” D. 88 at 24. That is, Keurig suggests that
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`the term includes the additional requirement that the outlet needles be positioned directly above
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`and below one another. Id. Keurig’s construction of the term “vertically offset,” therefore,
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`includes a limitation on the outlet needles’ vertical and horizontal spacing. See id. This
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`construction reads a limitation into the claim that is not supported by its language. Accordingly,
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`the Court agrees with Touch that its construction of “vertically offset” reflects the term’s ordinary
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`Case 1:16-cv-10142-DJC Document 99 Filed 07/11/17 Page 15 of 50
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`meaning. See Johnson Worldwide, 175 F.3d at 989. Moreover, the Court finds that Touch’s
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`construction of “vertically offset” is more consistent with the intrinsic evidence and that nothing
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`in the prosecution history or Slocum’s expert opinion requires an alternative construction.
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`As further support for its construction of “vertically offset,” Touch directs the Court to the
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`patent specifications and, in particular, Figure 6 and Figure 7 as “exemplary embodiments” of the
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`claimed invention. D. 87 at 10-11; see, e.g., ‘343 patent, figs. 6 & 7. Reproduced below, both
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`Figure 6 and Figure 7 illustrate outlet needles that are “spaced above and below” one another, but
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`which are not positioned on the same vertical line. D. 87 at 10-11; see, e.g., ‘343 patent, figs. 6 &
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`7. Accordingly, Touch argues that Keurig’s proposed construction of “vertically offset” cannot be
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`correct because it would exclude not only Figures 6 and 7, but all disclosed embodiments of the
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`claimed invention. D. 87 at 12.
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`Keurig first argues that this construction is improper because the term “vertically offset”
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`was added late in the patent prosecution such that the specifications and file history cannot be
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`relied upon to inform the term’s meaning. D. 88 at 24-25; see D. 63-1. As Touch observes,
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`Case 1:16-cv-10142-DJC Document 99 Filed 07/11/17 Page 16 of 50
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`however, that amendment was made “in the context . . . of the disclosure in the specification” and
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`the amended language should be interpreted in view of the embodiments described in the
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`specifications. D. 94 at 19-20. That is, while the amendment may have narrowed the scope of the
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`claim, it does not necessarily follow that the amendment renders the original specifications
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`meaningless, especially when there is a reasonable construction of the amended language that is
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`still consistent with the specifications. See e.g., August Tech. Corp. v. Camtek, Ltd., 655 F.3d
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`1278, 1285-87 (Fed. Cir. 2011) (examining original patent specifications in the context of
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`construing amended patent claims).
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`Keurig next contends that the fact that its construction of “vertically offset” would result
`
`in certain claims not covering any of the disclosed embodiments is to be expected when the term
`
`is added as part of a narrowing amendment. D. 88 at 25; D. 95 at 17-18. For support, Keurig relies
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`on Chef America, Inc. v. Lamb-Weston, Inc., 358 F.3d 1371 (Fed. Cir. 2004), and North America
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`Container, Inc. v. Plastipak Packaging, Inc., 415 F.3d 1335 (Fed. Cir. 2005), but neither case
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`compels the Court to change its construction of “vertically offset.” In Chef America, the patentee
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`argued for a construction of the disputed term that was contrary to its ordinary meaning on the
`
`basis that the ordinary meaning excluded all t