N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ TEASHOT.LLC, a Colorado limited liability company , Plaintiff

- Appellant,

v.

GREEN MOUNTAIN COFFE E ROASTERS, INC., a Delaware corporation, KEURIG, INCORPORATED , a Delaware corpor a tion , AND STARBUCKS CORPORATIO N, a Washington corporation, Defendants

- Appellees.

______________________
2014

- 1323

______________________ Appeal from the United States District Court for the Dis trict of Colorado in No. 1:12

- CV

- 00189, Judge William J. Martinez.

______________________
Decided: January 5, 201 5

______________________
R OBERT R. B RUNELLI , Sheridan Ross P.C., of Denver, Colorado, argued for plaintiff

- appellant. With him on the brief were J OSEPH E. K OVARIK and D AVID B. K ELLIS

.TEASHOT

. LLC v. GREEN MOUNTAIN COFFEE ROASTER 2

M ICHAEL A. A LBERT , Wolf, Greenfield & Sacks, P.C., of Boston, Massachusetts, argued for defendants- appellees. W ith him on the brief were G ERALD B. H RYCYSZYN and H UNTER D. K EETON

. Of counsel on the brief were A ARON P. B RADFORD and A LEXANDER C. C LAYDEN , Lathrop & Gage LLP, of Denver, Colorado.

______________________ Before P ROST , Chief Judge, M OORE and C HEN , Circuit Judges.

P ROST , Chief Judge

. Teashot.LLC (“Teashot”) appeals from a final jud gment of the U.S. District Court for the District of Colorado of non

- infringement of U.S. Patent No. 5,895,672 (“’672 patent”) in favor of Green Mountain Coffee Roasters, Inc., Keurig, Inc., and Starbucks Corp. (collectively, “Green Mountain”). For the reasons that follow, we affirm.

B ACKGROUND

I. Patent

The ’672 patent seeks to adapt prior art coffee pod machines to make tea without the attendant weak taste from the short bre wing time. ’672 patent col. 1 l. 63

– col. 2 l. 19. The ’672 patent thus teaches the use of special tea composition in the known brewing pod or container as reflected in representative claim 1:

1. A tea extraction system for production of a ser ving of tea extract in a coffee brewing device, co mprising:
(a) a tea extraction container for containing a tea composition, said tea extraction container co mprising a sealed body having at least one internalTEASHOT

. LLC v. GREEN MOUNTAIN COFFEE ROASTER 3

compartment, said internal compartment contai ning said tea composition;
wherein said sealed body is constructed of a w ater- permeable material which allows flow of a fl uid through said sealed body to produce a tea extract from said tea composition; and,

(b) a tea composition comprising from about 2 grams to about 1 0 grams of tea having a particle size of from about 0.40 mm to about 0.75 mm.

II. District Court Proceedings

Teashot accuses Green Mountain’s tea

- brewing K

Cups of infringing the ’672 patent. The accused K

- Cup has a foil lid, which would be punctured by a needle to inject water during use.

The district court construed the claim element “sealed body is constructed of a water

- permeable material which allows flow of a fluid through said sealed body to produce a tea extract from said tea composition” as “the portions of the sealed body into whic h fluid flows and out of which fluid flows are water

- permeable material allowing flow of a fluid through said sealed body to produce a tea extract from said tea composition.” Teashot LLC v. Green Mou ntain Coffee Roasters, Inc
., No. 12

- CV

- 189 , 2012 WLTEASHOT

. LLC v. GREEN MOUNTAIN COFFEE ROASTER 4

5866443, at *3 (D. Colo. Nov. 19, 2012). The district court concluded that the K

- Cups do not literally infringe b ecause the K

- Cups do not have a “water

- permeable mater ial” for water to flow into the sealed bodies. Teashot LLC v. Green Mountain Coffee Roasters, Inc
., No. 12

- CV

- 189 , 2014 WL 485876, at *4– 5 (D. Colo. Feb. 6, 2014). The district court also found that Teashot “waived its right to raise the doctrine of equivalents by failing to timely disclose it as an infringement theory.” Id . at *6. The distri ct court therefore entered summary judgment of

non

- infringement in favor of Green Mountain. Id . at *5, *8.

Teashot appeals the claim construction and summary judgment of no literal infringement of the “said sealed body is constructed of a water -permeable material which allows flow of a fluid through said sealed body” element. Teashot also appeals the exclusion of its doctrine of equivalents theory. This court has jurisdiction under 28 U.S.C. § 1295(a)(1).

D ISCUSSION

I. Claim Construction

Claim construct ion is a question of law that we review de novo. Lighting Ballast Control LLC v. Philips Elecs. N. Am. Corp ., 744 F.3d 1272, 1276

– 77 (Fed. Cir. 2014) (en banc).

Teashot argues that the district court’s construction deviates from the claim text and impro perly imports limitations from the specification by requiring fluid to flow into and out of the sealed body through water

permeable material. Green Mountain counters that the phrase “which allows,” linking “water

- permeable mater ial” to the “flow of a flui d through said sealed body,” r e-TEASHOT

. LLC v. GREEN MOUNTAIN COFFEE ROASTER 5

quires that fluid flow s through the “sealed body” via the “water

- permeable material”.

We agree with Green Mountain that the claim text identifies “water

- permeable material” as the means through which fluid could flow throug h the “sealed body.” The specification confirms this conclusion. Every discu ssion in the specification of fluid flowing through the “sealed body” refers to the “water

- permeable material.” See, e.g. , ’672 patent col. 2 ll. 48

– 52, col. 5 ll. 42

– 45. The

’ 672 patent mentions no other means through which fluid could flow through the “sealed body.”

Teashot contends, however, that Figure 4 in the ’672 patent teaches an embodiment in which water enters a sealed body through an opening in a material that is not otherwise permeable to water. Teashot further contends that the district court’s claim construction improperly excludes this embodiment in Figure 4.

Figure 4, however, is limited to disclosing an a rrangement in which multiple tea containers can be a cces sed individually to add different tea compositions, but used together for brewing. See ’672 patent col. 7 l. 66

- col. 8 l. 13. Figure 4 and its descriptions do not show any details of entry or exit means in the containers for water to flow through. From this silence, we cannot assume Figure 4 to depart from the consistent teachings els ewhere in the ’672 patent that water can flow through a “sealed body” via a “water

- permeable material.” We are therefore not persuaded by Teashot that the district court erred in construing this claim element.

II. Summary Judgment of Non

- Infringement

We review a district court’s summary judgment determination de novo. Smothers v. Solvay Chems., Inc
., 740 F.3d 530, 538 (10th Cir. 2014).TEASHOT

. LLC v. GREEN MOUNTAIN COFFEE ROASTER 6

A. Literal Infringement
Literal infringement requires that “every limitation set forth in a claim must be found in an accused product, exactly.” Southwall Techs., Inc. v. Cardinal IG Co ., 54 F.3d 1570, 1575 (Fed. Cir. 1995).

Teashot does not dispute that its owner and the i nventor of the ’672 patent, in testimonies quoted by Green Mountain, admitted that the lid of the K

- Cup is not water permeable. Teashot also does not dispute the following admission that the mere puncturing of the K

- Cup lid fails to transform the material into a water

- permeable mater ial:
Q Correct me if I’m wrong, when you puncture the foil lid, the actual foil remains water imperme able, correct?

A The

-- the foil around the hole, yes.

Q Yes. The hole no longer has foil in it, correct?

A Correct.

Q Hence the hole.

A Right.

Q The water doesn’t flow through the foil; it flows through an open space. Correct?

A Correct.

Appellee Br. 31 (quoting J.A. A1203).

Nevertheless, Teashot contends that a factual dispute remains as to whether the K

- Cup’s lid, once punctured,TEASHOT

. LLC v. GREEN MOUNTAIN COFFEE ROASTER 7

becomes a “water

- permeable material.” Teashot cites no support in the record that a skilled artisan would consider “water

- permeable material” to encompass material not permeable to water but having merely a puncture hole. We do not find Teashot’s unsupported arguments

— especially against its admissions quoted by Green Mou ntain

— create a genuine factual dispute sufficient to su rvive sum mary judgment.

B

. Exclusion of Doctrine of Equivalents Theory

We review a discovery sanction for abuse of discretion. Kaufman v. Am. Family Mut. Ins. Co ., 601 F.3d 1088, 1092 (10th Cir. 2010); O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc ., 467 F.3 d 1355, 1369 (Fed. Cir. 2006).

Teashot argues that the district court erred in impo sing a discovery sanction under Rule 37 because its i nfringement contentions were not disclosed in response to any interrogatory, subjecting Teashot to a duty to su pplement its disclosure under Rule 26(e). Teashot argues that its infringement contentions were disclosed pursuant instead to the district court’s scheduling order. Teashot asserts that that the district court did not find a violation of the scheduling ordering and that Teashot fully co mplied with the scheduling order.

We find Teashot ’s arguments meritless. The district court specifically noted that its “Scheduling Order d irected Plaintiff to serve ‘its infringement contentions, claim charts, and associated docu ments on Defendants’ no later than May 1, 2012.” Teashot , 2014 WL 485876
, at *6 (quoting the scheduling order). The district court then found that “[i]t is undisputed that Plaintiff did not include the doctrine of equivalents in its original infringement contentions, served on May 1, 2012, and again failed to include this theory in its March 7, 2013 supplement.” Id

. at *7. Teashot’s violation of the scheduling order is theTEASHOT

. LLC v. GREEN MOUNTAIN COFFEE ROASTER 8

basis for the district court’s conclusion that “Plaintiff waived its right to rai se the doctrine of equivalents by failing to timely disclose it as an infringement theory.” Id . at *6.
Teashot’s assertion on appeal that it “fully complied with the Scheduling Order” is not supported by any showing that it disclosed any doctrine of equiv alents theory by the deadline in the scheduling order. See Reply Br. 17

- 18. Rather, Teashot’s assertion is based on its argument that “the Scheduling Order is utterly silent about any required contents of the infringement conte ntions, and contains no sup plementation prohibition.” Id

. But silence on the required contents of “infringement contentions” does not mean that Teashot can choose to disclose nothing about its doctrine of equivalents theory. Silence on supplementation prohibition also does not

me an that Teashot can amend at will after the scheduling order deadline. Teashot’s focus on what the scheduling order is “silent” about glosses over Teashot’s disclosure duties under the guise of ignorance.

It was in the context of addressing Teashot’s clai m of ignorance that the district court compared Teashot’s duty to disclose its infringement contentions under the sche duling order to a disclosure duty under Rule 26(e) in r esponse to a contention interrogatory. See Teashot
, 2014 WL 485876
, at *6 (“Plaint iff alleges that this did not constitute waiver because nothing in this Court’s Schedu ling Order or Local Rules required it to disclose this theory any earlier in the litigation.”). The district court di smissed Teashot’s arguments because “Plaintiff’s att orneys are experienced patent litigators, who are reasonably expected to understand that infringement contentions

— whether responsive to a contention interrogatory, r equired by local patent rules, or included in a scheduling order

— should specify what infrin gement theories the party is pursuing.” Id . at *7.TEASHOT

. LLC v. GREEN MOUNTAIN COFFEE ROASTER 9

We find that Teashot’s complaints about the discovery sanction take the district court’s reasoning relating to Rule 26(e) out of context. Examining “the totality of the circumstances involved in the ca se,” we cannot say that the district court abused its discretion in imposing the discovery sanction on Teashot. See Olcott v. Del . Flood Co ., 76 F.3d 1538, 1557 (10th Cir. 1996). Accordingly, we affirm the district court’s exclusion of Teashot’s doctrine of equivalents theory and affirm the summary judgment of non

- infringement in favor of Green Mountain.

AFFIRMED