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-GWAGR, Judge George H. Wu.

______________________ 

Decided: December 26, 2023

______________________ 

DOUGLAS H. CARSTEN, McDermott Will & Emery LLP, 

Irvine, CA, argued for plaintiff-appellant. Also represented 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 represented 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: 1 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 descend, via division and continuation, from a single application and share a specification. K-fee filed suit against 

Nespresso USA in the Central District of California alleging 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. Nespresso 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 construction 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 judgment of non-infringement, we reverse that grant as well

and remand for further proceedings.

I 

A 

The asserted patents describe and claim coffee-machine 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 machines. ʼ176 patent, col. 1, lines 11–34, 60–62. The displayed information may also specify capsule-specific 

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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 comprising:

providing an apparatus including a barcode reader;

inserting a first portion capsule into the apparatus, 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 including . . . 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 barcode 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 Construction 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 Office] 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 European patent, EP 3 023 362. K-fee was seeking to distinguish 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 prosecution 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 “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). 

Id. The district court did “not resort to extrinsic evidence 

to construe th[e] term.” Id. 

Based on that claim construction of “barcode,” Nespresso 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 capsules did not meet the “barcode” limitations of the claims, 

J.A. 2922. The district court, granting the motion, reiterated that bit codes using only two symbols could not be barcodes, 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 constructed of bars having variable widths, and therefore contains 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 Nespresso’s accused products used a code having only two symbols 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). 

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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 purport 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. Qualcomm Inc., 21 F.4th 801, 808 (Fed. Cir. 2021). “We generally 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 history, informs the determination of claim meaning in context, including by resolving ambiguities”; but “even if the 

meaning is plain on the face of the claim language, the patentee 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 Personalized 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 prosecution 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. Nespresso contends that the court correctly invoked the prosecution history to clarify the ordinary meaning, not to 

narrow an otherwise apparent ordinary meaning. Nespresso also argues that applying the standard required for 

disclaimer would nevertheless lead to the same result.

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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 visually 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-message 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 address 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 specification. 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 

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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 “barcode” 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 Order, 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 discloses 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 created for this litigation. J.A. 1102–09. It concluded that 

“the [relevant artisan] at all times defines the term ‘barcode’ 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 components 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 suggestion before us that a line code’s messages must be set 

out in a straight line, rather than along (say) the circumference 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 uniform.

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 barcode—as shown above—is always constructed of bars having 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 surrounding material in the K-fee EPO submission, to conclude 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 Opinion, at *2, *9. Thus, the district court read the statement

that a barcode “is always constructed of bars having variable widths and therefore contains more than only two binary 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, demonstrate that the district court’s conclusion was too confining. 

Elsewhere in the same filing, K-fee also noted that “a barcode 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, using the terms “bit code” and “binary code” interchangeably, 

stated that “[b]arcodes can therefore principally be regarded 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 determining that, taken together, a relevant artisan would 

still conclude that no bit code could be a barcode. While Kfee 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 messages 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, Kfee 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 barcodes (messages) can be broken down into binary “modules,” 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. Nespresso 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 Nespresso’s argument is divorced from what K-fee actually represented 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 “modules.” 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 Kfee’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. K-fee 

cited numerous sources before the EPO to support such an 

understanding of “barcode,” ranging from Wikipedia to barcode 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 explicit representation to the EPO that “the [relevant artisan] 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 consistent with K-fee’s bottom-line purpose (which it fulfilled) 

of persuading the EPO that Jarisch did not involve a “barcode.” On its face, Jarisch is easily understood to fall outside 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 evident” 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 persuades 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 refer to line-code messages, displaying bars, that are characterized by the varying-width visual appearance of the bars 

in the messages. 

2 

What remains to be considered is the question of surrender 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 evidence of a relevant artisan’s understanding of that language, 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 apparent meaning. 

First, Nespresso contends only in passing—and primarily 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 redefinition 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. Brunswick 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 statements 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 unmistakable.” 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 disclaimer.” 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 inconsistent 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 patent 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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B 

Having addressed the individual-message use of “barcode,” 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 produced by the coding system (to be read and decoded), 

though not necessarily all such messages, have non-uniform-width bars—for all the reasons set out in discussing 

the individual-message meaning of “barcode.” No argument has been made to us that a coding system, to be a 

“barcode” system, must never produce an individual equalwidth-bar message, e.g., a message that simply alternates 

same-width bars, among the large set of messages produced. In other words, we recognize that there might exist 

one or more messages that have a uniform-bar-width appearance (e.g., 0101 represented by alternating samewidth 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-uniform widths (or a coding system producing such messages).

III

The district court’s grant of summary judgment of noninfringement 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 

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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 module by uniform-width module), not to their visual appearance. 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

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