Case: 22-2042 Document: 61 Page: 1 Filed: 12/26/2023
United States Court of Appeals
for the Federal Circuit
______________________
K-FEE SYSTEM GMBH,
Plaintiff-Appellant
v.
NESPRESSO USA, INC.,
Defendant-Appellee
______________________
2022-2042
______________________
Appeal from the United States District Court for the
Central District of California in No. 2:21-cv-03402-GW-
AGR, Judge George H. Wu.
______________________
Decided: December 26, 2023
______________________
DOUGLAS H. CARSTEN, McDermott Will & Emery LLP,
Irvine, CA, argued for plaintiff-appellant. Also repre-
sented by KATHERINE M. PAPPAS; IAN BARNETT BROOKS,
ADAM WILLIAM BURROWBRIDGE, Washington, DC.
WAYNE M. BARSKY, Gibson, Dunn & Crutcher LLP, Los
Angeles, CA, argued for defendant-appellee. Also repre-
sented by YU-CHIEH ERNEST HSIN, San Francisco, CA;
CHRISTINE RANNEY, Denver, CO.
______________________
Before TARANTO, CLEVENGER, and STOLL, Circuit Judges.
Case: 22-2042 Document: 61 Page: 2 Filed: 12/26/2023
2 K-FEE SYSTEM GMBH v. NESPRESSO USA, INC.
TARANTO, Circuit Judge.
K-fee System GmbH owns U.S. Patent
Nos. 10,858,176, 10,858,177, and 10,870,531, which all de-
scend, via division and continuation, from a single applica-
tion and share a specification. K-fee filed suit against
Nespresso USA in the Central District of California alleg-
ing infringement of the three patents. The district court
issued a claim-construction order in which it construed,
among other terms, “barcode,” a term present in every
claim of the asserted patents. K-fee Systems GmbH v. Nes-
presso USA, Inc., No. 2:21-cv-03402,
2022 WL 2826443, at
*5 (C.D. Cal. March 10, 2022) (Claim Construction Order).
Nespresso then filed a motion for summary judgment of
non-infringement, arguing that its products did not meet
the “barcode” claim limitations under the court’s construc-
tion and thus it did not infringe any asserted claims. The
district court agreed and granted Nespresso’s motion for
summary judgment. K-fee Systems GmbH v. Nespresso
USA, Inc., No. 2:21-cv-03402,
2022 WL 2826441, at *1
(C.D. Cal. June 17, 2022) (Summary Judgment Opinion).
After final judgment was entered, K-fee appealed. We
agree with K-fee that the district court erred in construing
“barcode,” and we reverse the district court’s construction.
Because the erroneous construction of “barcode” was also
the basis for the district court’s grant of summary judg-
ment of non-infringement, we reverse that grant as well
and remand for further proceedings.
I
A
The asserted patents describe and claim coffee-ma-
chine portion capsules that display information that, when
read by a device associated with the coffee machine, can
prevent the capsules from being used in incompatible ma-
chines. ʼ176 patent, col. 1, lines 11–34, 60–62. The dis-
played information may also specify capsule-specific
Case: 22-2042 Document: 61 Page: 3 Filed: 12/26/2023
K-FEE SYSTEM GMBH v. NESPRESSO USA, INC. 3
brewing parameters, such as temperature and amount of
water. ʼ176 patent, col. 3, lines 23–27. Critically for this
appeal, the patents implement this concept by encoding the
information in a “barcode.” ʼ176 patent, col. 8, line 54–55,
col. 12, line 67, through col. 13, line 2. Claim 1 of the ʼ176
patent is representative for the purposes of this appeal and
reads, in relevant part:
1. A method of making a coffee beverage compris-
ing:
providing an apparatus including a bar-
code reader;
inserting a first portion capsule into the ap-
paratus, the first portion capsule including
. . . an opposing bottom side with a first
barcode located on the bottom side, . . . ;
reading the first barcode with the barcode
reader;
controlling a production process of a first
coffee beverage based upon the reading of
the first barcode;
...
inserting a second portion capsule into the
apparatus, the second portion capsule in-
cluding . . . an opposing bottom side with a
second barcode located on the bottom side
and being different from the first barcode,
...;
reading the second barcode with the bar-
code reader;
controlling a second production process of a
second coffee beverage based upon the
reading of the second barcode, the second
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4 K-FEE SYSTEM GMBH v. NESPRESSO USA, INC.
production process being different than the
first production process;
....
ʼ176 patent, col. 12, line 52 through col. 13, line 41.
B
In its claim-construction order, the district court noted
that “the parties agree that plain and ordinary meaning
applies, but dispute what that meaning is.” Claim Con-
struction Order, at *5. The district court characterized the
core of the dispute as “whether statements made by K-fee
System GmbH . . . before the EPO [European Patent Of-
fice] concerning the meaning of ‘barcode’ should influence
the plain and ordinary meaning of that limitation in these
proceedings.” Id., at *6. K-fee, through its patent attorney,
made the statements in a motion asking the EPO to deny
an opposition filed by Nespresso’s foreign affiliate, Nestec
S.A., that challenged the validity of K-fee’s related Euro-
pean patent, EP 3 023 362. K-fee was seeking to distin-
guish a particular piece of prior art, WO 2011/141532 A1
(Jarisch, referred to in the EPO as D1). Id., at *7; see J.A.
1101–25. 1 The district court concluded that “the EPO pros-
ecution records . . . were provided to the PTO” by K-fee
when it was prosecuting what became its ’176 patent in the
U.S. Patent and Trademark Office, and the district court
therefore analyzed them as part of the intrinsic record.
Claim Construction Order, at *6.
The district court concluded that K-fee had “argued
strenuously” before the EPO for a particular “plain and
1 Along with the legal submission, K-fee filed an expert
declaration by Ralf Jesse. J.A. 1156–61. The district court,
in its rulings on appeal, did not rely on that declaration—
which, we note, would not alter our conclusion about the
proper claim construction.
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K-FEE SYSTEM GMBH v. NESPRESSO USA, INC. 5
ordinary meaning,” which excluded “bit codes”—codes
made up of two binary symbols. Id., at *8. Based on the
EPO submission by K-fee, the district court construed “bar-
code” to have
its plain and ordinary meaning (i.e., a code having
bars of variable width, which includes the lines and
gaps), the scope of which is understood by the clear
and unequivocal statements K-fee made to the
EPO (i.e., the scope of barcode does not include the
type of bit code disclosed in Jarisch/D1).
Id. The district court did “not resort to extrinsic evidence
to construe th[e] term.” Id.
Based on that claim construction of “barcode,” Nes-
presso moved for summary judgment of non-infringement
of its accused products. Nespresso primarily argued that
the capsules of its accused products operated identically to
the Jarisch capsules that K-fee had distinguished before
the EPO in that both used a machine-readable code having
only two binary symbols, J.A. 2914, so that the accused cap-
sules did not meet the “barcode” limitations of the claims,
J.A. 2922. The district court, granting the motion, reiter-
ated that bit codes using only two symbols could not be bar-
codes, placing particular weight on K-fee’s statement to the
EPO that Jarisch “discloses a ‘bit code,’ but not a barcode,
because the barcode—as shown above—is always con-
structed of bars having variable widths, and therefore con-
tains more than only two binary symbols, such as ‘0’ and
‘1.’” J.A.1111, Summary Judgment Opinion, at *2, *7. The
district court found that there was no dispute that Nes-
presso’s accused products used a code having only two sym-
bols and concluded that Nespresso therefore did not
infringe. Summary Judgment Opinion, at *7, *9.
The district court entered final judgment on June 28,
2022, dismissing K-fee’s invalidity counterclaims without
prejudice. K-fee timely appealed on July 14, 2022. We
have jurisdiction under
28 U.S.C. § 1295(a)(1).
Case: 22-2042 Document: 61 Page: 6 Filed: 12/26/2023
6 K-FEE SYSTEM GMBH v. NESPRESSO USA, INC.
II
We first address the proper construction of “barcode.”
The district court’s ruling relied only on intrinsic evidence,
see Claim Construction Order, at *8; the court did not pur-
port to make, and neither party argues on appeal that the
court did make or should have made, a factual finding
about disputed extrinsic evidence concerning extra-patent
understandings of the term. We therefore decide the
proper claim construction de novo. Intel Corp. v. Qual-
comm Inc.,
21 F.4th 801, 808 (Fed. Cir. 2021). “We gener-
ally give words of a claim their ordinary meaning in the
context of the claim and the whole patent document; [and]
the specification particularly, but also the prosecution his-
tory, informs the determination of claim meaning in con-
text, including by resolving ambiguities”; but “even if the
meaning is plain on the face of the claim language, the pa-
tentee can, by acting with sufficient clarity, disclaim such
a plain meaning or prescribe a special definition.” World
Class Technology Corp. v. Ormco Corp.,
769 F.3d 1120,
1123 (Fed. Cir. 2014) (first citing Phillips v. AWH Corp.,
415 F.3d 1303, 1312-17 (Fed. Cir. 2005) (en banc); and then
citing Thorner v. Sony Computer Entertainment America
LLC,
669 F.3d 1362, 1365 (Fed. Cir. 2012)); see Personal-
ized Media Communications, LLC v. Apple Inc.,
952 F.3d
1336, 1339–40 (Fed. Cir. 2020).
Broadly, K-fee argues that the district court narrowed
the ordinary meaning of “barcode,” implicitly finding pros-
ecution disclaimer (though the district court never framed
it as disclaimer) when it used K-fee’s statements to the
EPO to interpret the term. K-fee asserts that this effective
holding of disclaimer was improper and that its statements
to the EPO did not meet the standard for disclaimer. Nes-
presso contends that the court correctly invoked the prose-
cution history to clarify the ordinary meaning, not to
narrow an otherwise apparent ordinary meaning. Nes-
presso also argues that applying the standard required for
disclaimer would nevertheless lead to the same result.
Case: 22-2042 Document: 61 Page: 7 Filed: 12/26/2023
K-FEE SYSTEM GMBH v. NESPRESSO USA, INC. 7
At the outset, we note that the term “barcode” has been
used in this matter in two different ways. In one use, it
refers to an individual message to be read and decoded, e.g.,
the sequence of bars shown on the bottom side of a flange
on a single capsule, so that two different-sequence capsules
have two different “barcodes.” The claim language quoted
supra suggests that meaning. In another use, “barcode”
refers to the coding “system” used to produce the multiple,
individual messages, e.g., “the Jarisch code” or “the Vertuo
code” (used in the accused products). Nespresso’s Br. at 2;
see also, e.g., K-fee’s Br. at 14–15.
The parties essentially disregard that usage difference,
instead focusing entirely on whether the term refers to vis-
ually non-uniform-width bars, either with (as the district
court held) or without (as we hold) an additional narrowing
“bit code” restriction. We proceed, given the language of
the claims, by first addressing in full the individual-mes-
sage use of “barcode,” often using “message” expressly, for
which we hold that an individual message must display
such non-uniformity. After that discussion, we briefly ad-
dress the coding-system use of “barcode.”
A
We consider the ordinary meaning of “barcode” in the
context of the patent and prosecution history and then turn
to the question of whether K-fee surrendered claim scope
by clear disclaimer or redefinition.
1
The parties agree that the meaning of “barcode” is not
clarified by the claims themselves or the shared specifica-
tion. K-fee also no longer challenges the status of the EPO
filings as intrinsic evidence, although it did so before the
district court. Thus, putting to one side for the moment the
possibility of clear surrender (discussed infra), we address
first what K-fee’s motion to deny the opposition in the EPO
indicates about ordinary meaning—here, what a relevant
Case: 22-2042 Document: 61 Page: 8 Filed: 12/26/2023
8 K-FEE SYSTEM GMBH v. NESPRESSO USA, INC.
artisan would understand the meaning of “barcode” in the
field to be. On considering K-fee’s submission, we disagree
with the district court that the ordinary meaning of “bar-
code” excludes “bit codes” (in some sense, two-value codes)
or even bit codes of “the type . . . disclosed in Jarisch” to the
extent that the latter is different. Claim Construction Or-
der, at *8.
K-fee’s motion to the EPO was a response to Nestec’s
validity challenge, which argued that Jarisch (Nestec’s own
international application) defeated the novelty of K-fee’s
European patent EP 3 023 362. Like K-fee’s EP 3 023 362
and its patents asserted in the present case, Jarisch dis-
closes a beverage capsule displaying information, “by
means of a code,” that the coffee machine can read and use.
J.A. 2971. In its opposition, Nestec contended that this
code was a “barcode,” a term used by K-fee in EP 3 023 362.
J.A. 1086. In response, K-fee first provided evidence about
the meaning of “barcode” to a relevant artisan—evidence
in the form of quotes from publications in the field, not cre-
ated for this litigation. J.A. 1102–09. It concluded that
“the [relevant artisan] at all times defines the term ‘bar-
code’ as a line code constructed of bars having variable
widths.” J.A. 1109. 2 That understanding is reflected, as
well, in a Wikipedia entry and a dictionary entry submitted
to the district court by K-fee. See J.A. 974–1004, 1006–07.
The ordinary, common-sense, natural English meaning of
“bars having variable widths” is a matter of visual
2 “Line code” refers to a code whose message compo-
nents are set out linearly—e.g., from left to right—rather
than, say, in a two-dimensional display (like that of a QR—
quick response—code). This aspect of a “barcode” is not in
dispute between the parties. In particular, there is no sug-
gestion before us that a line code’s messages must be set
out in a straight line, rather than along (say) the circum-
ference of a circle.
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K-FEE SYSTEM GMBH v. NESPRESSO USA, INC. 9
appearance: “bars” are two-dimensional shapes having
length and width (even if not exactly rectangular), 3 and the
widths (in the direction of the linear reading) are not uni-
form.
Before the EPO, K-fee, after setting forth the foregoing,
then argued, with the support of an expert declaration,
that the teaching of Jarisch did not meet this definition and
(under European law) that a barcode could not be “directly
and unambiguously inferred” from Jarisch. J.A. 1110,
1118; see J.A. 1110–19. Jarisch discloses, among other
codes, a code whose messages are “formed of a succession
of small rectangular surfaces” that can encode two states,
corresponding to 0 and 1. J.A. 2978. It was against this
background that K-fee made its statement that Jarisch
“discloses a ‘bit code,’ but not a barcode, because the bar-
code—as shown above—is always constructed of bars hav-
ing variable widths and therefore contains more than only
two binary symbols such as ‘0’ and ‘1’.” J.A. 1111.
The district court relied on that assertion, and sur-
rounding material in the K-fee EPO submission, to con-
clude that “the scope of barcode does not include the type
of bit code disclosed in Jarisch.” Claim Construction Order,
at *8. The district court further made clear, when applying
the construction at summary judgment, that by “the type
of bit code disclosed in Jarisch,” it meant “a binary code
containing only ‘0s’ and ‘1s.’” Summary Judgment Opin-
ion, at *2, *9. Thus, the district court read the statement
that a barcode “is always constructed of bars having varia-
ble widths and therefore contains more than only two bi-
nary symbols such as ‘0’ and ‘1’” to mean that a barcode
must “contain[] more than only two binary symbols” and,
3 We have no dispute before us about what geometric
shapes may qualify as “bars” for purposes of a “barcode,” so
we do not address that question.
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10 K-FEE SYSTEM GMBH v. NESPRESSO USA, INC.
by extension, that any code that contains only two binary
symbols could not be a barcode. Id. at *8.
K-fee’s other statements to the EPO, however, demon-
strate that the district court’s conclusion was too confining.
Elsewhere in the same filing, K-fee also noted that “a bar-
code can be, but is not necessarily, a bit code. It is therefore
a special form of the binary code.” J.A. 1112. K-fee further
asserted, in its EPO filing, that “while the barcode is a ‘bit
code,’ it is also a ‘special case’ and therefore represents a
subset of the ‘bit code.’” J.A. 1114. And K-fee’s expert, us-
ing the terms “bit code” and “binary code” interchangeably,
stated that “[b]arcodes can therefore principally be re-
garded as a version of binary codes.” J.A. 1157.
The district court referred to some of those statements.
Claim Construction Order, at *8. It erred, however, in de-
termining that, taken together, a relevant artisan would
still conclude that no bit code could be a barcode. While K-
fee suggested that a consequence of being “constructed of
bars having variable widths” would be the existence of
“more than only two binary symbols,” the reason it gave for
Jarisch not disclosing a barcode was that Jarisch’s mes-
sages were not “constructed of bars having variable
widths.” J.A. 1111. K-fee’s remarks all suggest that K-fee
understood the relationship between barcodes and bit
codes to be more complex than simply that bit codes cannot
be barcodes.
In its motion to deny the opposition before the EPO, K-
fee also clearly stated that retail barcodes, known as EAN
[European Article Number] or UPC [Universal Product
Code] barcodes, fell within the scope of its claims. J.A.
1102–03. Indeed, Nespresso does not seem to dispute that
such codes are within the ordinary meaning of “barcode”
for this patent. The record indicates that EAN/UPC bar-
codes (messages) can be broken down into binary “mod-
ules,” where each module has only two possible states, as
in a bit code. J.A. 18, 1106, 3347, 3354–55, 3962. The
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K-FEE SYSTEM GMBH v. NESPRESSO USA, INC. 11
modules are then combined into “symbols”—sequences of
seven modules—that encode the digits from 0 to 9. Id. Nes-
presso argues that these messages are barcodes—and not
bit codes—because, despite having binary modules, they
have more than two symbols, and there is no evidence that
they are read at the module level, and thus no evidence
that the unit of the code that is read is binary. Nespresso’s
Br. at 49–50; Oral Arg. at 25:12–26:11. While it is true that
no evidence in the record describes how retail barcodes are
read, the absence of such evidence highlights that Nes-
presso’s argument is divorced from what K-fee actually rep-
resented to the EPO when it plainly invoked retail
barcodes as examples of barcodes. There, K-fee presented
no evidence to the EPO about how retail barcodes encode
information or how they are read. See J.A. 1102–03. It did
not describe retail codes as made up of “symbols” and “mod-
ules.” The only evidence it did present was that the visual
presentation of the coded messages is as a series of bars of
varying widths, independently of how the messages are
read (one binary module at a time or some other way). Id.
Instead, retail barcodes are barcodes, and the code used by
Jarisch is not, because messages of the former contain bars
of visually varying widths, and messages of the latter do
not.
In sum, on the point in dispute, all that is clear from K-
fee’s submission to the EPO about a relevant artisan’s un-
derstanding of “barcode” is that barcode messages use bars
of varying widths—a matter of visual appearance. K-fee
cited numerous sources before the EPO to support such an
understanding of “barcode,” ranging from Wikipedia to bar-
code standards to textbooks. J.A. 1102–09. The sources
discuss various barcodes for various settings, but all have
in common an emphasis on “bars” or “stripes” of varying
widths. J.A. 1102–09. This is consistent with K-fee’s ex-
plicit representation to the EPO that “the [relevant arti-
san] at all times defines the term ‘barcode’ as a line code
constructed of bars having variable widths.” J.A. 1109.
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12 K-FEE SYSTEM GMBH v. NESPRESSO USA, INC.
That understanding of K-fee’s EPO submission is con-
sistent with K-fee’s bottom-line purpose (which it fulfilled)
of persuading the EPO that Jarisch did not involve a “bar-
code.” On its face, Jarisch is easily understood to fall out-
side a definition of “barcode” that invokes visual
appearance: It does not clearly reveal any bars of varying
widths. And the EPO itself concluded that it was “not evi-
dent” that Jarisch discloses “a barcode having variable
widths.” J.A. 1209; see also infra p. 14.
Nespresso objects to a visual-appearance definition of
“barcode,” but the law asks us to determine the meaning of
a term “to the [relevant] artisan after reading the entire
patent.” Phillips, 415 F.3d at 1321. The evidence per-
suades us that a relevant artisan identifies a barcode by
appearance and not by other criteria such as a particular
encoding of data of the sort reflected in the district court’s
claim construction. We conclude that the relevant artisan
reading the asserted patents and their prosecution history
(the latter now accepted by the parties to include the EPO
opposition submission) would understand “barcode” to re-
fer to line-code messages, displaying bars, that are charac-
terized by the varying-width visual appearance of the bars
in the messages.
2
What remains to be considered is the question of sur-
render by K-fee in the EPO submission. To determine
whether K-fee disclaimed or otherwise surrendered claim
scope that comes within the claim language, on all the evi-
dence of a relevant artisan’s understanding of that lan-
guage, we consider whether, despite the apparent ordinary
meaning evident from the intrinsic evidence, K-fee “act[ed]
with sufficient clarity” before the EPO to “disclaim . . . [the]
plain meaning or prescribe a special definition.” World
Class Technology,
769 F.3d at 1123. This inquiry is related
to but distinct from the inquiry into what the prosecution
history shows about a relevant artisan’s understanding of
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K-FEE SYSTEM GMBH v. NESPRESSO USA, INC. 13
the claim language in context. We conclude that K-fee did
not act with the clarity required either to prescribe a new
meaning for “barcode” or to disclaim any portion of the ap-
parent meaning.
First, Nespresso contends only in passing—and pri-
marily in a footnote—that K-fee changed the scope of the
term “barcode” through lexicography. But arguments
raised only in footnotes are generally forfeited, especially
where not developed through discussion and application of
the governing legal standards. CommScope Technologies,
LLC v. Dali Wireless Inc.,
10 F.4th 1289, 1296 (Fed. Cir.
2021); SmithKline Beecham Corp. v. Apotex Corp.,
439 F.3d
1312, 1319–20 (Fed. Cir. 2006). Regardless, putting aside
forfeiture, we see no indication of any attempt at redefini-
tion by K-fee. “To act as its own lexicographer, a patentee
must ‘clearly set forth a definition of the disputed claim
term’ other than its plain and ordinary meaning” and must
“‘clearly express an intent’ to redefine the term.” Thorner,
669 F.3d at 1365 (first quoting CCS Fitness, Inc. v. Bruns-
wick Corp.,
288 F.3d 1359, 1366 (Fed. Cir. 2002); and then
quoting Helmsderfer v. Bobrick Washroom Equipment,
Inc.,
527 F.3d 1379, 1381 (Fed. Cir. 2008)). Before the
EPO, however, K-fee consistently argued that its view of
barcodes was the ordinary meaning. Further, as discussed
above, K-fee’s representations to the EPO were far from
“clear[].”
Id.
Second, Nespresso argues that because K-fee’s state-
ments were “repeated, unequivocal, and unambiguous,” a
conclusion of disclaimer is appropriate. Nespresso’s Br. at
23–24. We disagree that K-fee’s statements to the EPO
were “unequivocal” or “unambiguous” and hold that they
were not clear enough to support disclaimer. Disclaimer or
disavowal of claim scope “must be both clear and unmis-
takable.” Baxalta Inc. v. Genentech, Inc.,
972 F.3d 1341,
1348 (Fed Cir. 2020) (quoting 3M Innovative Properties Co.
v. Tredegar Corp.,
725 F.3d 1315, 1325 (Fed. Cir. 2013)).
Further, “[e]ven if an isolated statement appears to
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14 K-FEE SYSTEM GMBH v. NESPRESSO USA, INC.
disclaim subject matter, the prosecution history as a whole
may demonstrate that the patentee committed no clear and
unmistakable disclaimer.” Ecolab, Inc. v. FMC Corp.,
569
F.3d 1335, 1342 (Fed. Cir. 2009). As discussed above, the
statements K-fee made about bit codes were not clear and,
if anything, were decidedly ambiguous. Taken as a whole,
the prosecution history certainly demonstrates “that the
patentee committed no clear and unmistakable dis-
claimer.”
Id.
The only thing K-fee clearly distinguished before the
EPO was Jarisch itself, which nowhere declares that its
messages have bars of variable widths. Nespresso argues
that Figure 5 of Jarisch shows regions of varying widths;
that anticipation by Jarisch at the EPO therefore cannot
have been avoided based on its lack of bars of variable
widths; and further, that any disavowal of Jarisch is incon-
sistent with K-fee’s arguments about the ordinary meaning
of barcode. Nespresso’s arguments about Figure 5—raised
at summary judgment rather than at claim construction—
are unpersuasive. As K-fee notes, there is no clear evidence
in Jarisch that the wider regions of Figure 5 are part of the
code. K-fee’s Opening Br. at 43; see J.A. 2978–79, 2985.
The EPO itself noted that “[i]t is also not evident that the
reflective and/or absorbing/diffracting surfaces [of Jarisch]
disclose a barcode having variable widths.” J.A. 1209. We
conclude that Jarisch was distinguished not through any
clear disavowal of claim scope, but because it was never
within the scope of the claim.
Finally, we note that K-fee makes the legal argument
that a conclusion of disclaimer cannot be premised on
statements made when defending a related but distinct pa-
tent against a different legal standard—here the European
standard for novelty. We do not address that contention
because we have concluded that K-fee’s statements were
too unclear to constitute disclaimer.
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K-FEE SYSTEM GMBH v. NESPRESSO USA, INC. 15
B
Having addressed the individual-message use of “bar-
code,” we briefly address the coding-system meaning of
“barcode” the parties have sometimes used before us. For
that meaning, what is crucial is whether any messages pro-
duced by the coding system (to be read and decoded),
though not necessarily all such messages, have non-uni-
form-width bars—for all the reasons set out in discussing
the individual-message meaning of “barcode.” No argu-
ment has been made to us that a coding system, to be a
“barcode” system, must never produce an individual equal-
width-bar message, e.g., a message that simply alternates
same-width bars, among the large set of messages pro-
duced. In other words, we recognize that there might exist
one or more messages that have a uniform-bar-width ap-
pearance (e.g., 0101 represented by alternating same-
width bars) in a “barcode” coding system that otherwise
produces messages “constructed of bars having variable
widths.” J.A. 1109.
* * *
We agree with K-fee that the full scope of the ordinary
meaning of “barcode” should apply, and we conclude that
the ordinary meaning that a relevant artisan would arrive
at after reading the intrinsic evidence is that a barcode is
defined by its visual appearance as lined-up bars of varying
widths. We reverse the district court’s claim construction
and construe “barcode” to refer to code messages consisting
of a linearly arranged sequence of bars of visually non-uni-
form widths (or a coding system producing such messages).
III
The district court’s grant of summary judgment of non-
infringement followed directly from its claim construction.
Summary Judgment Opinion, at *9. Reversing the district
court’s claim construction necessitates reversing its grant
of summary judgment as well, because the infringement
Case: 22-2042 Document: 61 Page: 16 Filed: 12/26/2023
16 K-FEE SYSTEM GMBH v. NESPRESSO USA, INC.
analysis under the new construction will necessarily differ.
For example, the similarity between the accused products
and Jarisch that the district court relied on relates to how
the messages are read by the reader (uniform-width mod-
ule by uniform-width module), not to their visual appear-
ance. Summary Judgment Opinion, at *6. That is not the
correct analysis under the claim construction we adopt. A
new analysis is required on remand.
IV
We have considered Nespresso’s other arguments, and
we find them unpersuasive. For the foregoing reasons, we
reverse the district court’s claim construction of “barcode”
and its summary-judgment determination. We remand for
further proceedings consistent with this opinion.
Costs awarded to K-fee.
REVERSED AND REMANDED
