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In K-Fee System GMBH, v. Nespresso USA, Inc. No. 2022-2042 (Fed. Cir. December 26, 2023) (“Opinion”), the case addresses how the construction of terms in claim limitations is critical in analyzing infringement.


K-fee System GmbH owns U.S. Patent 10,858,176 (“the ’176 patent”), U.S. Patent 10,858,177 (“the ’177 patent”), and U.S. Patent 10,870,531 (“the ’531 patent,” and collectively with the ’176 patent and ’177 patent, “the asserted patents”), which all derive from a single application and share a specification.

K-fee filed a suit against Nespresso USA in the Central District of California (“District Court”), alleging infringement of the asserted patents. The District Court issued a claim-construction order construing certain claim limitations, including the term “barcode” that is present in every claim of the asserted patents. The asserted patents describe and claim coffee-machine portion capsules that use a “barcode” encoded with information that may be read by a device associated with a coffee machine to determine the capsules’ compatibility with particular machines and specifications for using the capsules, such as brewing parameters like temperature and amount of water. The District Court construed “barcode” according to its plain and ordinary meaning: a code having bars of variable width, including lines and gaps, and excluding “bit codes” (codes made up of two binary symbols). In issuing this construction, the District Court relied on the intrinsic record, specifically, K-fee’s communications with the EPO that were provided to the USPTO, where K-fee stated that a prior art reference, Jarisch, “discloses a ‘bit code,’ but not a barcode, because the barcode … is always constructed of bars having variable widths, and therefore contains more than only two binary symbols, such as ‘0’ and ‘1.’” The District Court’s construction did not rely on any extrinsic evidence.

Nespresso filed a motion for summary judgment of non-infringement, arguing that its products did not meet the “barcode” limitations under the District Court’s construction and that it did not infringe any of the asserted patents. Nespresso primarily argued that its accused products’ capsules operated identically to Jarisch’s capsules, which K-fee distinguished before the EPO based on their use of a machine-readable code having only two binary symbols. Given the construction of the term “barcode” to exclude “bit codes,” Nespresso argued its code did not meet the “barcode” limitations under their plain and ordinary meaning construction. The District Court reiterated that bit codes using only two symbols could not be claimed “barcodes,” placing weight on K-fee’s statement to the EPO regarding Jarisch. The District Court found there was no dispute that Nespresso’s accused products used a code having only two symbols and concluded that Nespresso therefore did not infringe and thus granted Nespresso’s motion.

K-fee appealed.


Whether the District Court improperly construed the term “barcode” with a narrowed meaning.


The Federal Circuit disagreed with and reversed the District Court’s construction of “barcode.” Given that the construction was the basis for the District Court granting summary judgment, the Federal Circuit reversed and remanded.


On appeal, K-fee argued the District Court improperly narrowed the ordinary meaning of “barcode” by implicitly finding prosecution disclaimer based on K-fee’s statements to the EPO. K-fee further asserted the District Court’s holding of disclaimer was improper because K-fee’s statements to the EPO did not meet the standard of disclaimer.

The Federal Circuit first considered the ordinary meaning of “barcode” in the context of the asserted patents and prosecution history, and then determined whether K-fee surrendered claim scope by clear disclaimer or redefinition.

The Federal Circuit found that “barcode” is used in two different ways in the asserted patents. First, “barcode” 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.” Second, “barcode” refers to the coding system used to produce the multiple, individual messages, e.g., “the Jarisch code”. 

Regarding the prosecution history, the Federal Circuit determined that K-fee, in its statements to the EPO, provided evidence in the form of quotes from publications in the field about the meaning of “barcode” to a relevant artisan, where “the [relevant artisan] at all times defines the term ‘barcode’ as a line code constructed of bars having variable widths.” The Federal Circuit found this understanding is also reflected in a Wikipedia entry and a dictionary entry that K-fee submitted to the District Court. Thus, the Federal Circuit found the ordinary, common-sense, natural English meaning of “bars having variable widths” is a matter of visual appearance: “bars” are two-dimensional shapes having length and width (even if not exactly rectangular), and the widths (in the direction of the linear reading) are not uniform.

The Federal Circuit found that K-fee argued before the EPO that the Jarisch patent did not meet this definition of “barcode” and that under European law, a barcode could not be “directly and unambiguously inferred” from Jarisch because Jarisch disclosed a code whose messages are “formed of a succession of small rectangular surfaces” that can encode two states, corresponding to 0 and 1. As such, the Federal Circuit found that K-fee made its statement to the EPO against this background, in that Jarisch “discloses a ‘bit code,’ but not a barcode, because the barcode … is always constructed of bars having variable widths and therefore contains more than only two binary symbols such as ‘0’ and ‘1’.” The Federal Circuit further found that K-fee provided additional statements to the EPO, including an expert declaration, noting that “a barcode can be, but is not necessarily, a bit code” and a bit code is “a special form of the binary code,” with the expert using the terms “bit code” and “binary code” interchangeably and stating that “[b]arcodes can therefore principally be regarded as a version of binary codes.” In addition, the Federal Circuit found that K-fee’s statements clearly provided examples of barcodes, such as retail barcodes, that fell within the scope of the claims, and also clearly presented that a relevant artisan’s understanding of “barcode” is that the visual presentation of the coded messages is a series of bars of varying widths, regardless of how the messages are read. This supported K-fee’s position that Jarisch’s codes are not within the definition of “barcode” because the messages do not visually display bars of varying widths. Hence, the Federal Circuit found that the District Court erred in its analysis of K-fee’s statements to the EPO and in its conclusion that a relevant artisan would understand that a barcode must contain more than only two binary symbols, therefore any code that contains only two binary symbols (a bit code) could not be a barcode.

To determine whether K-fee disclaimed or otherwise surrendered claim scope that comes within the claim language, given all the evidence of a relevant artisan’s understanding of that language, the Federal Circuit considered 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.” The Federal Circuit found no indication that K-fee attempted to redefine the term “barcode,” as K-fee did not act as its own lexicographer. The Federal Circuit found K-fee consistently argued before the EPO that its view of barcodes was the ordinary meaning and that K-fee’s statements about bit codes were not clear and, if anything, were decidedly ambiguous as a disclaimer, which “must be both clear and unmistakable.” Thus, the Federal Circuit found K-fee did not act with the clarity required to either prescribe a new meaning for “barcode” or disclaim any portion of the apparent meaning.

In conclusion, the Federal Circuit found the full scope of the ordinary meaning of “barcode” should apply and the ordinary meaning 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. As such, the Federal Circuit reversed the District Court’s construction of “barcode” and based on that, reversed the summary judgment of non-infringement.