Keurig Green Mountain, Inc. v. Touch Coffee, Civil Action No.: 16-cv-10142-DJC

MEMORANDUM AND ORDER

CASPER, J.

I. Introduction

Plaintiff and Counterclaim Defendant Keurig Green Mountain, Inc. ("Keurig") filed this lawsuit for patent infringement against Defendant and Counterclaim Plaintiff Touch Coffee & Beverages, LLC ("Touch"), alleging that Touch was infringing its '260 patent and seeking a declaratory judgment that it was not infringing four of Touch's patents (the '343 patent, '149 patent, '150 patent and the '151 patent). D. 1. Touch's counterclaim asserts that Keurig is infringing four of Touch's patents and seeks a declaratory judgment that Touch is not infringing Keurig's '260 patent and that Keurig's '260 patent is invalid. D. 30. The parties now seek construction of several disputed claim terms. D. 87; D. 88; D. 94; D. 95; D. 97. After extensive briefing and a Markman hearing, D. 98, the Court's claim construction follows.

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II. Standard of Review

Claim construction is a question of law. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 372, 388-89 (1996). When considering the construction of disputed terms, "the analytical focus of claim construction must begin, and remain centered, on the language of the claims themselves." ACTV, Inc. v. Walt Disney Co., 346 F.3d 1082, 1088 (Fed. Cir. 2003) (citing Tex. Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1201-02 (Fed. Cir. 2002)). That is, the Court must construe the terms in a manner that "stays true to the claim language and most naturally aligns with the patent's description of the invention." Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (quoting Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998)). The Court construes "the meaning that the term would have to a person of ordinary skill in the art in question at the time of . . . the effective filing date of the patent application" because courts presume that "inventors are typically persons skilled in the field of the invention" and that the patents themselves are "addressed to . . . others of skill in the pertinent art." Id. at 1313; see ACTV, 346 F.3d at 1088. The Court thus seeks to clarify the meaning of each disputed term by examining "the words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art." Phillips, 415 F.3d at 1314 (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir. 2004)).

A. The Words of the Claims

The Court begins its claim construction by looking at the words of the claims. "[T]he claims of a patent define the invention to which the patentee is entitled the right to exclude." Id. at 1312 (quoting Innova/Pure Water, 381 F.3d at 1115). Claims "are generally given their ordinary and customary meaning." Id. That is, "[a] court may construe a claim term to have its plain

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meaning when such a construction resolves a dispute between the parties." In re Body Sci. LLC Patent Litig., 167 F. Supp. 3d 152, 156 (D. Mass. 2016) (citing O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1361 (Fed. Cir. 2008); U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997)). In some circumstances, however, "the context in which a term is used in the asserted claim can be highly instructive" as to the appropriate meaning of that term. Phillips, 415 F.3d at 1314. For instance, when a claim term is used consistently throughout the patent, the meaning of that term in two distinct claims is likely to be the same. In re Body Sci. LLC Patent Litig., 167 F. Supp. 3d at 157 (citing Phillips, 415 F.3d at 1314). Similarly, "the presence of a dependent claim that adds a particular limitation gives rise to a presumption that the limitation in question is not present in the independent claim." Phillips, 415 F.3d at 1315 (citing Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 910 (Fed. Cir. 2004)). Finally, "claims are interpreted with an eye towards giving effect to all terms in the claim." Bicon, Inc. v. Straumann Co., 441 F.3d 945, 950 (Fed. Cir. 2006).

B. The Specification

Claims "are part of 'a fully integrated written instrument,' consisting principally of a specification that concludes with the claims." Phillips, 415 F.3d at 1315 (quoting Markman, 52 F.3d at 978). The specification is the patentee's description of the invention and defines "the scope and outer boundary" of the claims. On Demand Mach. Corp. v. Ingram Indus., Inc., 442 F.3d 1331, 1338-40 (Fed. Cir. 2006). As a result, the Court must read the claims in light of the specification of which they are a part because the construction of the claims cannot be broader in scope than the invention set forth in the patent's specification. See Lexington Luminance LLC v. Amazon.com Inc., 601 F. App'x 963, 970 (Fed. Cir. 2015); On Demand Mach., 442 F.3d at 1338-40; Phillips, 415 F.3d at 1315. Indeed, because the specification's purpose is to "teach and enable

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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 is "appropriate for a court . . . to rely heavily upon the written description for guidance as to the meaning of the claims." Phillips, 415 F.3d at 1317, 1323. Nevertheless, courts must be careful not to "import[] limitations from the specification into the claim," id. at 1323, because a patent's "claims, not specification embodiments, define the scope of patent protection," Kara Tech. Inc. v. Stamps.com Inc., 582 F.3d 1341, 1348 (Fed. Cir. 2009). In the end, the construction that is the most correct is the one that best reflects the claim language and the patent's description of the invention. Id. at 1316 (citing Renishaw, 158 F.3d at 1250).

C. The Patent Prosecution

"[A] court should also consider the patent's prosecution history, if it is in evidence," id. at 1317, because it is the next best indicator of term meaning. In re: Body Sci. LLC Patent Litig., 167 F. Supp. 3d at 158; see PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1366-67 (Fed. Cir. 2007). The prosecution history includes the complete record of the proceedings before the PTO and incorporates the prior art examined during the patent's prosecution. Phillips, 415 F.3d at 1317. This history may shed light on a term's meaning because it "can provide further evidence of how the inventor understood the claimed invention," Lexington, 601 F. App'x at 970 (citing Phillips, 415 F.3d at 1317), and "whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be," Phillips, 415 F.3d at 1317 (citing Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582-83 (Fed. Cir. 1996)). The Court's reliance upon the patent prosecution, however, is limited. That is, "because the prosecution history represents an ongoing negotiation between the PTO and the applicant, rather than the final product of that negotiation, it often lacks the clarity of the specification and thus is less useful for claim

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construction purposes." Id. Accordingly, the Court must give less weight to the prosecution history than the weight given to the claims and the specifications. Id.

D. Extrinsic Evidence

The Court may further consider extrinsic evidence "if the court deems [such evidence] helpful in determining 'the true meaning of language used in the patent claims.'" Id. at 1318 (quoting Markman, 52 F.3d at 980). Extrinsic evidence "consists of all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises." Id. at 1317 (quoting Markman, 52 F.3d at 980). Courts look to this information when it can assist in educating the Court about "the field of the invention" and "what a person of ordinary skill in the art would understand claim terms to mean." Id. at 1319. For instance, expert testimony can provide useful background on the technology in question, shed light on how the invention works and further ensure that the Court's understanding of the patent's technical aspects is aligned with that of a person with skill in the art. Id. at 1318.

The use of extrinsic evidence, however, is not without bounds. In examining the meaning of each disputed term, the court must give more weight to intrinsic evidence (i.e., the language of the claims, the specifications and the prosecution history) than it does to extrinsic evidence. Sky Techs., LLC v. Ariba, Inc., 491 F. Supp. 2d 154, 156 (D. Mass. 2007). Indeed, "extrinsic evidence is less significant than the intrinsic record," Lexington, 601 F. App'x at 970, because it is generally considered less reliable than the patent and the prosecution history in determining the legally operative meaning of the claim language specific to the particular patent at issue, Phillips, 415 F.3d at 1317-19. For this reason, the Court cannot use extrinsic evidence to "contradict claim meaning that is unambiguous in light of the intrinsic evidence." Id. at 1324. That is, the Court cannot place "undue reliance on extrinsic evidence" because it "poses the risk that it will be used

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to change the meaning of claims in derogation of the 'indisputable public records consisting of the claims.'" Id. at 1319 (quoting Southwall Techs., Inc., v. Cardinal IG Co., 54 F.3d 1570, 1578 (Fed. Cir. 1995)).

III. The Patents at Issue

This lawsuit involves patents addressing technology for single-serve beverage brewing systems. D. 87-2 ('343 patent); D. 87-3 ('149 patent); D. 87-4 ('150 patent); D. 87-5 ('151 patent); D. 87-10 ('260 patent). Keurig alleges that Touch has and continues to infringe at least claim 5 of its '260 patent by manufacturing and selling...