The Federal Circuit recently construed the claim term “barcode” in K-Fee System GmbH v. Nespresso USA, Inc., 2022-2042, — F.4th — (Fed. Cir. Dec. 26, 2023). K-fee owns U.S. Patent Nos. 10,858,176, 10,858,177, and 10,870,531, which all share the same specification.

The district court had granted Nespresso's motion for summary judgment of no infringement because Nespresso's products did not meet the “barcode” claim limitations under the court's construction.

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.” Based on arguments made in related European prosecution that a barcode excluded “bit codes”—codes made us of two binary symbols—the district court construed “barcode” 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).” Jarisch discloses a code whose messages are “formed of a succession of small rectangular surfaces” that can encode two states, corresponding to 0 and 1.

There was no dispute that Nespresso's accused products (coffee pods that have a barcode located on the outer rim of the pod) used a code having only two symbols.

The Federal Circuit, however, concluded that “all that is clear from K-fee's submission to the EPO about a relevant artisan's understanding of ‘barcode' is that barcode messages use bars of varying widths—a matter of visual appearance.” The Federal Circuit noted that Jarisch did not use bars of varying widths, so “Jarisch is easily understood to fall outside a definition of ‘barcode' that invokes visual appearance.”

Furthermore, the statements K-fee made before the EPO about “bit codes” were not clear and, taken as a whole, the prosecution history demonstrated “that the patentee committed no clear and unmistakable disclaimer,” citing Ecolab, Inc. v. FMC Corp., 569 F.3d 1335, 1342 (Fed. Cir. 2009).

Nespresso objected to a visual-appearance definition of “barcode”; but the Federal Circuit held that the evidence showed 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.

Accordingly, the Federal Circuit concluded 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,” that is, “code messages consisting of a linearly arranged sequence of bars of visually non-uniform widths.”

The patent attorneys at Thomas P. Howard, LLC enforce patents and defend against infringement in litigation nationwide including in Colorado.