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Keurig Green Mountain, Inc. v. Touch Coffee & Beverages, LLC

United States District Court, D. Massachusetts

July 11, 2017

KEURIG GREEN MOUNTAIN, INC., Plaintiff and Counterclaim Defendant,
v.
TOUCH COFFEE & BEVERAGES, LLC, Defendant and Counterclaim Plaintiff.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         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.

         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 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 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 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 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 Touch brewing systems and components thereof, including the Supercharger and Touch XLarge cups. D. 1 ¶¶ 84-90. Touch counterclaims that Keurig is infringing Touch's ‘343 patent, ‘149 patent, ‘150 patent and ‘151 patent by making and selling the Keurig 2.0 Brewer and components thereof and inducing customers to purchase the Keurig 2.0 Brewer, K-Cups and K-Carafe pods. D. 30 ¶¶ 57-88.

         Keurig filed its ‘260 patent on April 3, 2002 and the patent was issued on December 2, 2003. D. 87-10 at 2. Touch filed all of its patents relevant to this case on November 14, 2014. D. 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 29, 2015, D. 30-1 at 2, whereas the ‘149, ‘150 and ‘151 patents were issued on October 6, 2015. D. 30-2 at 2; D. 30-3 at 2; D. 30-4 at 2.

         IV. Procedural History

         Keurig filed this patent infringement lawsuit on February 1, 2016. D. 1. Touch filed counterclaims against Keurig. D. 6, 30. Touch then moved for preliminary injunction, requesting that this Court enjoin Keurig from distributing and selling Keurig 2.0 Brewing System brewers. D. 7. After allowing certain expedited discovery, the Court denied Touch's motion for preliminary injunction.[1] D. 19; D. 68. After claim construction briefing, the Court held a Markman hearing and took the matter under advisement. D. 98.

         V. Construction of Disputed Terms The parties dispute the meaning of the following terms and the Court resolves these disputes as discussed below.[2]

         A. Disputed Terms in Touch's Patents

         1. Beverage Ingredient/Beverage Grind

Term

Touch's Construction

Keurig's Construction

Beverage Ingredient/Grind

An ingredient to brew a beverage

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

[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]

         The parties dispute the meaning of the term “beverage ingredient” and “beverage grind” as they appear in claims 1-3, 7-10, 13 and 18-19 from the ‘343 patent; claims 1-7, 10, 12-19, 22-26 and 28 from the ‘149 patent; claims 1, 2, 4-8 and 10-15 from the ‘150 patent; and claims 1-4, 6-11, 13-18 and 20-22 from the ‘151 patent.[3] D. 97-1 at 2, 6.

         Those claims generally use the terms “beverage ingredient” and “beverage grind” in the same manner throughout the four patents. For instance, claim 1 in the ‘149 patent covers “[a] method of brewing a beverage from either one of a first beverage cartridge having a beverage ingredient therein and a second beverage cartridge having a beverage ingredient therein.” ‘149 patent, 33:27-30. Similarly, claim 1 of the ‘150 patent covers, in relevant part, a method of brewing a beverage with a brewer with certain qualities such that the device can create a drink from “a first beverage cartridge having beverage grind therein” and with the ability to brew a beverage from “a second beverage cartridge having beverage grind therein.” ‘150 patent, 33:18-40. In essence, the term is used in the claims when describing the mixture to be included in the beverage cartridge that will ultimately be pierced and used to brew a single-serve drink. While the parties agree that the term refers to multiple types of drinks, see, e.g., D. 87 at 8-9, D. 88 at 22, they dispute whether the term has a more limited definition as to ground coffee, D. 97-1 at 6. That is, Touch urges the Court to use an ordinary definition of “beverage ingredient” or “beverage grind” such that it means “[a]n ingredient to brew a beverage” as to any drinks including coffee. D. 87 at 8. Alternatively, Keurig contends that these terms only define a particular sized coffee grounds as explained in the patent specification. D. 88 at 22-24.

         Here, the Court adopts Touch's construction that “beverage ingredient” or “beverage grind” indicates “an ingredient to brew a beverage.” First, this definition accords with the claim language itself, which expresses no restrictions as to the coffee grind size that could constitute the beverage ingredient or grind. See, e.g., ‘149 patent, 33:25-44; ‘150 patent, 33:18-40. As a result, this definition comports with the ordinary meaning of the claim language when considered as a broadly written term with no immediate modifiers. See Johnson Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 989 (Fed. Cir. 1999).

         Further, the remainder of the intrinsic evidence, including the language in the specification, fails to overcome the “heavy presumption in favor of [assigning] the ordinary meaning” to the claim language. Id. First, the specification includes language that further confirms that “beverage ingredient” and “beverage grind” should have the ordinary definition as the invention is first described as being directed “to a brewing system for making hot beverages such as coffee, tea, cocoa, milk, and soup.” ‘149 patent, 1:18-19. Here, the patent makes no distinction as to the necessity that the brewing system is limited to a particular coffee grind size. Moreover, there are several other instances in which the specification specifically describes the “beverage ingredient” or “beverage grind” when referring to coffee grounds and does not designate the grind size formulations proposed in Keurig's construction. For instance, the invention summary explains that “the first chamber may be packed with a first beverage grind such as coffee grind, ” ‘149 patent, 5:10-11, without indicating any limitation as to the sizes of the coffee grinds to be used in conjunction with the invention covered by the patent.

         To support its proffered construction, Keurig highlights that the specification in each of the relevant patents uses two diagrams, Figures 8A and 8B, to contrast the distribution of coffee grind sizes in a typical K-Cup and the distribution of coffee grind sizes to be used as the beverage grind in accord with Touch's invention. D. 88 at 22-24. The Touch patents do distinguish the coffee grind sizes used in a K-Cup and those that they suggest should be used alongside this invention: the specification includes a graph that represents the contrast in grind size formulations between the K-Cup and the ideal formulation for the Touch invention and provides the details of a controlled experiment that found that the proposed coffee grind formulation produced coffee that was eight percent stronger than the K-Cup formulation. ‘149 patent, 10:39-12:45. The discussion of coffee grind sizes, however, does not necessitate defining the terms “beverage ingredient” and “beverage grind” as narrowly as Keurig urges.

         First, the claim language expressed that “the invention is not to be restricted except in light of the attached claims and their equivalents.” See id. at 33:23-24. As stated, none of the claims circumscribe “beverage ingredient” or “beverage grind” by a certain coffee grind size. See Pfizer, Inc. v. Ranbaxy Labs. Ltd., 457 F.3d 1284, 1290 (Fed. Cir. 2006) (explaining that restricting the claim based upon illustrative examples was improper because the specification stated that the examples were “not to be read as limiting the scope of the invention”). Second, the fact “[t]hat claims are interpreted in light of the specification does not mean that everything expressed in the specification must be read into all of the claims.” Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1326 (Fed. Cir. 2002) (quoting Raytheon Co. v. Roper Corp., 723 F.2d 951, 957 (Fed. Cir. 1983)). That is, a party “cannot overcome the ‘heavy presumption' that a claim term takes on its ordinary meaning simply by pointing to the preferred embodiment or other structures or steps disclosed in the specification or prosecution history.” Id. (quoting CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)). Although Keurig argues that Touch was acting as its own lexicographer in defining “beverage ingredient” and “beverage grind” and those terms must thus take on a more specific meaning, that is only true when a patent-holder “clearly express[es] an intent to redefine the term” in dispute. Hill-Rom Servs., Inc. v. Stryker Corp., 755 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.

         Keurig still contends, however, that its more limited construction is appropriate because the Touch patents describe Figure 8B as a graph representing “distribution of coffee grind sizes according to this invention.” D. 88 at 22-24; see ‘343 patent, 6:42-43. “It is true that, in some circumstances, a patentee's consistent reference to a certain limitation or a preferred embodiment as ‘this invention' or the ‘present invention' can serve to limit the scope of the entire invention, particularly where no other intrinsic evidence suggests otherwise.” Absolute Software, Inc. v. Stealth Signal, Inc., 659 F.3d 1121, 1136 (Fed. Cir. 2011). However, the “use of the phrase ‘present invention' or ‘this invention' is not always so limiting, such as where the references to a certain limitation as being the ‘invention' are not uniform or where other portions of the intrinsic evidence do not support applying the limitation to the entire patent.” Id. at 1136-37 (collecting cases). That is, the use of these phrases does not automatically limit the meaning of claim terms in all circumstances. Netcraft Corp. v. eBay, Inc., 549 F.3d 1394, 1398 (Fed. Cir. 2008).

         After considering these guideposts, the Court concludes that it need not adopt Keurig's more limited construction for coffee grind because of the patents' usage of “this invention.” First, the Federal Circuit has articulated that the use of “in accordance with this invention” is highly suggestive when placed in the Summary of the Invention because it suggests that the limiting principles apply to the entire invention and not merely one or more embodiments. See TriStrata, Inc. v. Microsoft Corp., 594 F. App'x 653, 656 (Fed. Cir. 2014). Here, however, the singular discussion of the coffee grind formulation is not located in the summary of the invention. See ‘149 patent, 10:55-12:45. Instead, here, where the summary of the invention discusses the “beverage grind” or “beverage ingredient, ” it says, without elaboration, that certain chambers of the device “may be packed with beverage grind” such as “coffee grind” or “powder cream.” See id. at 5:10-13 (making no mention of coffee grind or coffee grind formulation specifications necessary for the beverage ingredient or grind).

         Moreover, the construction of “beverage ingredient” or “beverage grind” stands on different ground from cases in which the phrase “present invention” or “this invention” compelled construction of a claim term with a more limited definition consistent with a particular description or embodiment. In those cases, each of the patents provided a circumscribed definition of a claim term and then repeatedly used that claim term with this limited construction, convincing the Federal Circuit that the terms at issue should be construed uniformly with that same limitation. For example, in Edwards Lifesciences LLC v. Cook Inc., 582 F.3d 1322, 1331 (Fed. Cir. 2009), the Federal Circuit construed the term “graft” to mean an intraluminal device because “the specification frequently describes an ‘intraluminal graft' as ‘the present invention; or ‘this invention, ' indicating an intent to limit the invention to intraluminal devices.” Likewise, in Lydall Thermal/Acoustical, Inc. v. Fed.-Mogul Corp., 344 F. App'x 607, 613-14 (Fed. Cir. 2009), the court held that “the specification repeatedly describes the batt as having an insulating layer disposed between two binding layers” and that this “consistent description” makes clear that the “fibrous batt of fibers” must have three layers. This is also the case for Honeywell International Inc. v. ITT Industries, Inc., 452 F.3d 1312, 1313, 1318 (Fed. Cir. 2006), where the court construed “fuel injection system component” to mean fuel filter because the description referred to the fuel filter as the invention on at least four different occasions. This is distinct from the Touch patents, which only discuss the coffee grind formulations once in the entirety of the patents and refrain from applying or mentioning any coffee grind size limitations when describing or discussing the “beverage grind” or “beverage ingredient” throughout the remainder of the abstract, specification and claims.

         Keurig's proposed construction also asks the Court to construe “beverage grind” and “beverage ingredient” to exclude the description related to Figure 8A, the coffee grind sizes generally provided in a single-serve cartridge sold by Green Mountain Coffee Roasters and provided in a K-Cup. D. 88 at 22-24. The Federal Circuit has recognized that “the specification may reveal an intentional disclaimer, or disavowal, of claim scope by the inventor” by making clear that the invention does not include a particular feature. Openwave Sys., Inc. v. Apple Inc., 808 F.3d 509, 513 (Fed. Cir. 2015) (quoting Phillips, 415 F.3d at 1316). The standard for disavowal of claim scope, however, is “exacting” and requires the Court to conclude that “the specification is ‘both so clear as to show reasonable clarity and deliberateness, and so unmistakable as to be unambiguous evidence of disclaimer.'” Id. (quoting Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1322 (Fed. Cir. 2012)). To hold disavowal of claim scope through the disparagement of a particular characteristic, the Court focuses on whether “the specification goes well beyond expressing the patentee's preference” and “its repeated derogatory statements” about a particular feature demonstrate disavowal. Id. Here, the Court cannot conclude that the Touch patents have “repeated derogatory statements” that make clear that the invention disclaims the coffee grind size generally used in K-Cups, particularly where the coffee grind size is mentioned only once in each patent.

         Finally, Keurig's reliance upon the interpretation of the patent by its expert, Slocum, does not compel an alternative outcome. As explained, the Court must give greater weight to the intrinsic evidence available, Lexington, 601 F. App'x at 970, and cannot use extrinsic evidence to contradict claim meaning that is otherwise unambiguous, Phillips, 415 F.3d at 1324.

         For the foregoing reasons, the Court construes “beverage ingredient” and “beverage grind” as “an ingredient to brew a beverage.”

         2. Vertically Offset

Term

Touch's Construction

Keurig's Construction

Vertically Offset

Spaced above or below

Positioned along and spaced apart on a vertical line that passes through the longitudinal axes of the needles.

         The parties dispute the meaning of the term “vertically offset” as it appears in claims 1-3, 7-10, 13 and 18-19 from the ‘343 patent; claims 1-7, 13-19, 24-26 and 28 from the ‘149 patent; claims 1, 2 and 4-8 from the ‘150 patent; and claims 1-4, 6-11, 13-18 and 20-22 from the ‘151 patent. D. 97-1 at 2, 7.

         Touch urges the Court to adopt a construction of the term “vertically offset” based on the ordinary meaning of the term's constituent parts. D. 87 at 10. Because “vertical” generally means “above or below” and “offset” generally means “spaced” or “spaced apart, ” Touch proposes a construction of the “vertically offset” as “spaced above or below.” Id. Touch also suggests that the word “vertically” is intended only to distinguish from other ways in which the patent might require that the outlet needles be offset, such as “horizontally offset.” D. 94 at 21-22. In Keurig's view, “vertically offset” must mean “positioned along and spaced apart on a vertical line that passes through the longitudinal axes of the needles.” D. 88 at 24. That is, Keurig suggests that the term includes the additional requirement that the outlet needles be positioned directly above and below one another. Id. Keurig's construction of the term “vertically offset, ” therefore, includes a limitation on the outlet needles' vertical and horizontal spacing. See id. This construction reads a limitation into the claim that is not supported by its language. Accordingly, the Court agrees with Touch that its construction of “vertically offset” reflects the term's ordinary meaning. See Johnson Worldwide, 175 F.3d at 989. Moreover, the Court finds that Touch's construction of “vertically offset” is more consistent with the intrinsic evidence and that nothing in the prosecution history or Slocum's expert opinion requires an alternative construction.

         As further support for its construction of “vertically offset, ” Touch directs the Court to the patent specifications and, in particular, Figure 6 and Figure 7 as “exemplary embodiments” of the claimed invention. D. 87 at 10-11; see, e.g., ‘343 patent, figs. 6 & 7. Reproduced below, both Figure 6 and Figure 7 illustrate outlet needles that are “spaced above and below” one another, but which are not positioned on the same vertical line. D. 87 at 10-11; see, e.g., ‘343 patent, figs. 6 & 7. Accordingly, Touch argues that Keurig's proposed construction of “vertically offset” cannot be correct because it would exclude not only Figures 6 and 7, but all disclosed embodiments of the claimed invention. D. 87 at 12.

         (Image Omitted)

         Keurig first argues that this construction is improper because the term “vertically offset” was added late in the patent prosecution such that the specifications and file history cannot be relied upon to inform the term's meaning. D. 88 at 24-25; see D. 63-1. As Touch observes, however, that amendment was made “in the context . . . of the disclosure in the specification” and the amended language should be interpreted in view of the embodiments described in the specifications. D. 94 at 19-20. That is, while the amendment may have narrowed the scope of the claim, it does not necessarily follow that the amendment renders the original specifications meaningless, especially when there is a reasonable construction of the amended language that is still consistent ...


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