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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION



The COCA-COLA COMPANY,

Plaintiff,

v.

PEPSICO, INC., PEPSI-COLA COMPANY,
RAPAK, LLC, and DSS RAPAK, INC.,

Defendants





Civil Action No.
1:02-CV-2887-RWS


PEPSICO’S MARKMAN BRIEF ON CLAIM CONSTRUCTION ISSUES










S. Sam Sumitani
CHASE & SUMITANI
2 White Street
Concord, NH 03301

ATTORNEY-IN-CHARGE FOR DEFENDANT PEPSICO, INC

I. COCA-COLA THREATENS FREE COMPETITION IN THE BEVERAGE MARKETPLACE BY ATTEMPTING TO SWALLOW PEPSICO’S INNOVATIONS THROUGH OVERLY BROAD INTERPRETATIONS OF ITS PATENT CLAIMS DIRECTED ONLY TO A PAIR OF RIBS. 1
II. PEPSICO RESPECTFULLY ASKS THE COURT TO CONSTRUE THE MEANING OF THE CLAIMS IN THE ‘252 PATENT ACCORDING TO THE UNDERSTANDING OF A PERSON OF THE ORDINARY SKILL IN THE ART OF COLLAPSIBLE CONTAINERS IN 1984. 3
A. IN CONSTRUING A TERM AS UNDERSTOOD BY A PERSON OF THE ORDINARY SKILL IN THE ART, THE COURT SHOULD LOOK TO THE CLAIM LANGUAGE ITSELF PRESUMING ITS ORDINARY MEANING. 5
B. THE FEDERAL CIRCUIT INSTRUCTS THE COURT TO READ CLAIM 1 OF THE ‘252 PATENT IN LIGHT OF THE HIGHLY RELEVANT SPECIFICATION. 6
III. THE PROPER MEANING OF THE DISPUTED TERM “ELONGATED LIQUID PASSAGE MEMBER” IS A PAIR OF RIBS FORMING A PROTRUSION ATTACHED TO THE BAG WALL. 7
A. VIEWED IN LIGHT OF THE CLAIM AND SPECIFICATIONS, THE “ELONGATED LIQUID PASSAGE MEMBER” ELEMENT OF THE ‘252 PATENT IS A MEANS-PLUS-FUNCTION CLAIM GOVERNED BY 35 U.S.C. §112, ¶6, AND IS ACCORDINGLY LIMITED IN SCOPE TO THE WRITTEN DESCRIPTION AND ITS EQUIVALENTS. 7
B. BECAUSE THE FUNCTION OF THE “ELONGATED LIQUID PASSAGE MEMBER” IS TO ENABLE THE BAG TO COLLAPSE AROUND IT, THE COURT MUST LIMIT THE SCOPE OF CLAIM 1 OF THE ‘252 PATENT TO STRUCTURES THAT PERFORM THAT FUNCTION. 9
C. ONE OF OVERMAN’S IMPORTANT OBJECTIVES WAS TO PROVIDE A FLEXIBLE CONDUIT WHICH CAN BE INSERTED DURING FORMATION, AND NOW PRECLUDES COCA-COLA FROM ARGUING FOR AN INTERPRETATION OF CLAIM 1 OF THE ‘252 PATENT WHICH RENDERS THAT OBJECTIVE IMPOSSIBLE. 10
IV. THE DISPUTED TERM “LIQUID COMMUNICATION” MEANS A SINGLE CONTINUOUS STRUCTURE FOR LIQUID TO FLOW FROM ONE LOCATION TO ANOTHER. 11
V. CONCLUSION 12

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION



The COCA-COLA COMPANY,

Plaintiff,

v.

PEPSICO, INC., PEPSI-COLA COMPANY,
RAPAK, LLC, and DSS RAPAK, INC.,

Defendants





Civil Action No.
1:02-CV-2887-RWS

Jury Trial Demanded


PEPSICO’S MARKMAN BRIEF ON CLAIM CONSTRUCTION ISSUES

PepsiCo files this brief to assist the court in construing claim 1 of the 6,102,252 patent (hereinafter “’252 patent”) at the Markman proceeding scheduled for April 23, 2004.
I. Coca-Cola Threatens Free Competition in the Beverage Marketplace by Attempting to Swallow PepsiCo’s Innovations Through Overly Broad Interpretations of its Patent Claims Directed Only To a Pair of Ribs.

PepsiCo, Inc. is a world leader in convenient foods and beverages, with revenues of about $27 billion and over 147,000 employees. The Pepsi-Cola Company traces its humble beginnings to one Caleb Bradham, a pharmacist serving soft drinks to his drugstore’s fountain customers. Throughout its 106-year history, the Pepsi-Cola Company has survived bankruptcy, severe supply shortages, and numerous consumer paradigm shifts. PepsiCo’s success in the face of hardship is a result of superior products, high standards of performance, distinctive competitive strategies, and the high integrity of its employees.
Without a doubt, PepsiCo also owes its success to the highly competitive environment of the beverage marketplace and PepsiCo’s ability to nimbly maneuver it. The free market and its accompanying principle of rigorous competition creates an opportunity for PepsiCo to produce healthy financial rewards for its investors, but more importantly, offers greater choice and lower prices to distributors, retailers, and consumers alike. Intellectual property, particularly patents, play a vital role in the marketplace. It encourages competitors to innovate and to improve upon the art in ways not contemplated by a single inventor, i.e., designing around. Such innovations and improvements increase competition (of which is a tenet of the free market.)
Coca-Cola now threatens that free market through overzealous and expansive assertion of its ‘252 patent. According to Coca-Cola (the inventor), the apparatus claimed in ‘252 patent was conceived in view of two minor limitations in prior art collapsible containers using dip tubes (Col. 1, lines 42-48). The prior art collapsible containers required an additional manufacturing step, and its construction required manual installation of the tubes. Id.
The ‘252 patent is a “conduit member for [a] collapsible container,” and recites claims to an “elongated liquid passage member” having at least one “liquid channel” in “liquid communication” with a spout. (Col. 3, line 59, Col 4, line 3-4). Claim 1 in its entirety recites:
1. A disposable, flexible bag for use in containing and dispending a liquid, said bag being flat in an unfilled condition thereof, comprising: a bag wall; a spout having a spout opening therethrough attached to said bag wall and having a longitudinal axis substantially perpendicular to said bag wall when said bag is empty and before it is filled with liquid; and an elongated liquid passage member secured inside of said bag and having at least one liquid channel formed along at least a portion thereof in liquid communication with said spout opening, said liquid passage member lying substantially perpendicular to the longitudinal axis of said spout when the bag is empty and before said bag is filled with liquid. (emphasis added)
(Col. 3, lines 55-60 - Col. 4, lines 1- 11) It is clear that where the claims recite the previously quoted limitations, it refers to the forms and functions of the ribs extending along the interior surface of the bag.
Now Coca-Cola wishes to expand the claim limitations beyond actual meanings through post-hoc, litigation-induced interpretations and rationalizations. What is PepsiCo’s legitimate design-around, Coca-Cola would like to hijack and claim as its own, thereby wrongly inhibiting competition to Coca-Cola’s benefit.
II. PepsiCo Respectfully Asks the Court to Construe the Meaning of the Claims in the ‘252 Patent According to the Understanding of a Person of the Ordinary Skill in the Art of Collapsible Containers in 1984.

Claim construction is a matter of law because a patent is a fully integrated written instrument, and “it has long been and continues to be a fundamental principle of American law that the construction of a written evidence is exclusively with the court.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 977-978 (Fed. Cir. 1995) (hereinafter Markman I), (en banc), aff’d, 517 U.S. 370 (1996) (hereinafter Markman II). A patent is a government granted right to exclude others from making, using, or selling the invention only as claimed. 35 U.S.C. §154 (2000). By construing the boundaries of the claims, this Court is defining the federal legal rights created by the patent document. Markman I, 52 F.3d at 978.
Because the consequences of infringing that right are severe, a patentee must provide clear public notice as to the extent of his rights. Markman I, 52 F.3d at 978, In Re: Vamco Mach. & Tool, Inc., 752 F.2d 1564, 1577 n.5 (Fed. Cir. 1985). If the limits are not known, “***a zone of uncertainty which enterprise and experimentation may enter only at the risk of infringement claims would discourage invention ***” Markman II, 517 U.S. at 390. Thus, the patentee must “particularly [point] out and distinctly [claim]” his invention. 35 U.S.C. 112 ¶2 (2000).
In order for a patent to serve its public notice function, competitors must know that courts will apply established rules of construction drawing from the undisputed public record. Markman I, 52 F.3d at 978-979. This public record is also known as the intrinsic evidence (as opposed to the extrinsic evidence). Intrinsic evidence includes the claims, the drawings, the specifications, and the prosecution history, and is the “most significant source of the legally operative meaning of disputed claim language.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 2001).
Claim interpretation is an objective inquiry. Markman, I, 52 F.3d at 986. The Court must therefore focus on how a person of the ordinary skill in the collapsible container art understood the terms in 1984 in light of the claims, drawings, specifications, and prosecution history. Id.
A. In Construing a Term as Understood by a Person of The Ordinary Skill in the Art, the Court Should Look to the Claim Language Itself Presuming its Ordinary Meaning.

Claim construction “begins and ends” with the actual words of the claims. Renishaw PLC v. Marposs Societ’ per Azioni, 158 F.3d 1243, 1248 (Fed. Cir. 1999), Abtox, Inc. v. Exitron Corp., 122 F.3d 1019, 1023 (Fed. Cir. 1997). There is a “heavy presumption” that the ordinary meaning of the claim term given by those of ordinary skill in the art applies. Johnson Worldwide Assoc. v. Zebco Corp., 175 F.3d 985, 989 (Fed. Cir. 1999). Where there are two equally plausible meanings for a disputed term, the Court should adopt the narrower meaning to promote the public notice function of claims. Digital Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335, 1344 (Fed. Cir. 1998) (“[I]f a claim is susceptible to a broader and narrower meaning, and the narrower one is clearly supported by the intrinsic evidence while the broader one raises questions of enablement under §112, ¶1, we will adopt the narrower of the two.”)
Although courts typically refer to the usual sources of intrinsic evidence, courts also frequently consult dictionaries and learned treatises to determine the ordinary and customary meaning of terms. Tex. Digital Sys. v. Telegenix, Inc., 308 F.3d 1193. (Fed. Cir. 2002). While dictionaries are technically extrinsic evidence, courts have long considered its use acceptable for ascertaining claim terms. Quantum Corp. v. Rodime, PLC, 65 F.3d 1577, 1581 (Fed. Cir. 1995) (“We see no error in the district court’s use of dictionary definitions to ascertain the ordinary meaning of the relevant claim limitation.”), In Re: Ripper, 171 F.2d 297, 299 (C.C.P.A. 1948) (“It is clear that in ascertaining the meaning of [claim terms], reference properly may be made to the ordinary dictionaries”). In fact, categorizing dictionaries as “extrinsic evidence or even a special form of extrinsic evidence is misplaced.” (internal quotations omitted) Tex. Digital Sys., 308 F.3d at 1203.
The use of dictionaries to aid claim term understanding is consistent with the patent’s notice function because it is publicly available at the time the patent is issue. Tex. Digital Sys., 308 F.3d at 1202-1203.
“Such references are unbiased reflections of common understanding not influenced by *** events subsequent to the fixing of the intrinsic record by the grant of the patent, not colored by the motives of the parties, and not inspired by litigation. Indeed, these materials may be the most meaningful sources *** to aid judges in better understanding both the technology and the terminology used by those skilled in the art***”
Tex. Digital Sys., 308 F.3d at 1203. Therefore, the Court should consult dictionaries to avoid litigation-induced misconstructions of disputed terms.
B. The Federal Circuit Instructs the Court to Read Claim 1 of the ‘252 Patent in Light of the Highly Relevant Specification.

“The specification is always highly relevant to the claim construction analysis, and is usually dispositive; it is the single best guide to the meaning of a disputed term.” Vitronics, 90 F.3d at 1582. The Court should be careful not read a limitation from a preferred embodiment or an example into a claim, however, because the”[c]laims, not the specification embodiments, define the scope of the protection.” American Permahedge, Inc. v. Barcana, Inc., 105 F.3d 1441, 1444 (Fed. Cir. 1997). On the other hand, where the patentee used “words or expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope,” the Court must import the disclosures in the specification into the disputed terms. Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1327. (Fed. Cir. 2002). After all, claims are “not to be interpreted in a vacuum, but are part of and are read in light of the specification. Slimfold Mfg. Co. v. Kinkead Indus., Inc., 810 F.2d 1113, 1116 (Fed. Cir. 1987).
III. The Proper Meaning of the Disputed Term “Elongated Liquid Passage Member” is a Pair of Ribs Forming a Protrusion Attached to the Bag Wall.

A. Viewed in Light of the Claim and Specifications, the “Elongated Liquid Passage Member” Element of the ‘252 Patent is a Means-Plus-Function Claim Governed by 35 U.S.C. §112, ¶6, and is Accordingly Limited in Scope to the Written Description and its Equivalents.

Whether an element of a claim is a means-plus-function is a claim construction issue. 35 U.S.C. §112, ¶6 (2000). Although absence of the term “means” creates a presumption that the element is not to be construed in accordance with §112, ¶6, it is rebuttable when the claim element does not recite sufficiently definite structure or material to perform the claimed function. Kemco Sales, Inc. v. Control Papers Co., 208 F.3d 1352, 1361 (Fed. Cir. 2000), John D. Watts v. XL Sys., 232 F.3d 877, 880 (Fed. Cir. 2000).
The presumption is rebutted when the term, as a name for structure, has a “reasonably well understood meaning in the art”. Id. at 880-881 (quoting Greenberg v. Ethicon Endo-Surgery, Inc., 91 F.3d 1580, 1583 (Fed. Cir. 1996)). The focus in this inquiry remains on whether the claim recites sufficiently definite structure. Id. at 880.
Following this inquiry, the Watts court did not find a means-plus-function element in the term “sealingly connected” because the claim limitation recited a “second end formed with tapered external threads” and referred to “a first end” with “tapered internal threads.” Id. at 881. The court found that there was sufficient structure because the claimed “threads” accomplished the sealing function. Id.
Unlike the disputed terms in Endicon, claim 1 of the ‘252 patent does not recite any structural limitations. Instead, it refers only to the member in terms of its relative location, its arrangement against the spout, and its functional purpose:
an elongated liquid passage member secured inside said bag and having at least one liquid channel *** in liquid communication with said spout opening, said liquid passage member lying substantially flat ** and disposed perpendicularly*** (emphasis added) (col 4, lines 3-11)
The term “liquid channel” deserves special attention because “channel” is defined as both a “a means of communication,” as well as a “long gutter, groove, or furrow.” Webster’s Ninth New Collegiate Dictionary 226 (Frederick C. Mish ed., 9th ed., Merriam Webster 1984). Coca-Cola, in its scramble to find a structural term wherever it can, urges the latter definition. Such an interpretation would be incorrect, however, because where there are two equally plausible meanings, the Court must interpret claims in litigation narrowly. Identix, 149 F.3d at 1344.
The Greenberg court likewise did not find a means-plus-function in the term “detent mechanism.” 91 F.3d at 1582. The court found that the term “detent,” despite its functional appearance, was a word like “filter,” “brake,” “clamp,” that takes their names from the functions they perform. Id. The court further found that “detent” was well understood in the art to mean a “mechanism that temporarily keeps one part in a certain position***” Id. (quoting Random House Unabridged Dictionary 541 (2d ed. 1993).
Unlike the disputed term in Greenberg, the word “member” is not a word that takes its name from the function it performs. The dictionary defines the word as a “constituent part of a whole,” or “one of the elements of a set of a class” Webster’s Ninth New Collegiate Dictionary at 740. It is entirely devoid of structure, and is therefore appropriate for the Court to construe it as a means-plus-function claim.
The consequence of finding a means plus function element is that the Court construes the elements to cover only the structure or material disclosed in the specification that perform the claimed function, or equivalents thereof. IMS Tech., Inc., v. Haas Automation, Inc., 206 F.3d 1422, 1432. (Fed. Cir. 2000). Consequently, the Court must narrow Overman’s claims to an “elongated liquid passage member” to a “pair of ribs”, or most expansively, any protrusion that severally attaches to the bag wall, because that is the structure Overman discloses in the specification:
The collapsible container *** includes at least one pair of ribs disposed through the length of the *** container*** (emphasis added) (col 3, lines 8-9)
***[A]nother embodiment *** includes a web strip including at least one pair of ribs disposed*** (emphasis added) (col 3, lines 27-29)
The specification defines the bounds of the means-plus-function claim to a pair of ribs, and therefore is the correct limitation to the term “elongated liquid passage member.”
B. Because the Function of the “Elongated Liquid Passage Member” is to Enable the Bag To Collapse Around it, the Court Must Limit the Scope of Claim 1 of the ‘252 Patent to Structures that Perform that Function.

The purpose disclosed in the specification is crucial to interpreting claim terms. See Fromson v. Anitec Printing Plates, Inc., 132 F.3d 1437 (Fed. Cir. 1997) Rev’d in part on other grounds, Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448 (Fed. Cir. 1998). In Fromson, the Federal Circuit affirmed a decision of the district court limiting the term “anodized oxide coating” to porous oxide coatings. Id. at 1445. The court relied on the fact that only porous oxide coatings accomplished this purpose because it was the only way to protect the surface from burning and current surging. Id. at 1443, 1445.
Similarly, Overman disclosed a function for the “elongated liquid passage member” in the specification:
The objects of the present invention are fulfilled by providing*** one pair of *** rib members. ***[A]s the liquid product is removed from the collapsible bag, the bag will continue to collapse around the rib members until all of the liquid product is dispensed therefrom. (col 1, lines 64-67, col 2, lines 1-9)
One of the objectives of the “elongated liquid passage member” is to provide a location for the bag to collapse.
The capability of providing a location for the bag to collapse is only possible with a protruded physical structure. Any other construction will not enable this important objective. It is thus necessary for the Court to import the “forming a protrusion” limitation from the specification into claim 1 of the ‘252 patent.
C. One of Overman’s Important Objectives was to Provide a Flexible Conduit Which Can Be Inserted During Formation, and Now Precludes Coca-Cola From Arguing for an Interpretation of Claim 1 of the ‘252 Patent Which Renders that Objective Impossible.

A court may constrict the ordinary meaning of a claim term in at least one of two ways: “***where the patentee acted as his own lexicographer, or where the intrinsic evidence shows that the patentee ***described a particular embodiment as important to the invention.” CCS Fitness v. Brunswick Corp., 288 F.3d 1359 (Fed. Cir. 2002), Overman discloses that one important objective was to provide a “flexible conduit for a collapsible bag which can be inserted during the formation of the bag and requires no manipulative steps after filling***” (col. 1, lines 60-63). Overman apparently thought the ability to insert a flexible conduit during formation was an important feature because prior art devices required manual insertions of dip tubes after bag construction, and distinguished her device on that basis. (col 1, lines 43-49).
It is thus appropriate for the Court to interpret “elongate liquid passage member” as any embodiment capable of achieving this primary objective. Toro Co. v. White Consol. Indus., 199 F.3d 1295, 1301 (limiting claim term based in part on describing a particular structure as “important to invention”), STX, Inc. v. Brine, Inc., 37 F.Supp 2d 740, 766 (D. Md. 1999) (“Claims must be read in the context of the problems solved, and with a common sense approach to the objectives of the invention”). Since no other structure besides a severable protrusion, or rib, is capable of the primary objective, the Court should narrow the terms of claim 1.
IV. The Disputed Term “Liquid Communication” means a Single Continuous Structure for Liquid to Flow from One Location to Another.

Since claim interpretation “begins and ends with the claims,” the Court should construe the term “communication” according to its ordinary meaning. Renishaw,158 F.3d 1248. The Webster’s dictionary defines “communication” as “an act or instance of transmitting.” Webster’s Ninth New Collegiate Dictionary at 266. It then defines “transmitting” as an act “to send or convey from one person or place to another.” Id. at 1254.
“Liquid communication” is therefore the structure capable of sending or conveying liquid from one specific point to another. This necessarily means that the flow is uninterrupted because any other interpretation will not be from one specific point to another, it will be from one specific point to a multitude of locations. If the flow is uninterrupted, it also necessarily means that the physical space between one specific point and the other is uninterrupted and continuous.
V. Conclusion

PepsiCo respectfully asks the Court to construe the claims according to the ordinary meaning of the terms. The Court should make this construction in light of publicly available evidence, including the claim, specifications, prosecution history, as well as dictionaries when the Court requires clarification.

Respectfully Submitted, this 23rd Day of April, 2004,






S. Sam Sumitani
CHASE & SUMITANI
2 White Street
Concord, NH 03301

ATTORNEY-IN-CHARGE FOR DEFENDANT PEPSICO, INC.

Before my first day, I will admit that I was naïve and perhaps uninformed; I had imagined that working for the New Hampshire Civil Liberties Union would mean that I would be involved in major, ground-breaking cases that brought on significant social change. Thoughts of my involvement in challenging the constitutionality of controversial legislation such as the USA Patriot Act and representing clients in cases like those I have read about in my casebooks danced around my head. As I soon realized, the day-to-day work is not necessarily as public, but no less important nor any less glorifying. It is often the resolution of the minute, particular issues affecting only a small number of individuals that have lasting impact.
Throughout the summer I took on a wide variety of tasks, from writing client letters, determining which cases the volunteer attorneys should consider, and researching possible challenges to upcoming state legislation. However, one aspect of my work that I particularly valued was the one-on-one client interaction and the lessons in lawyering that came with it. Previously, I had a general, abstract idea on the client-centered nature of a lawyer’s work, but I had not understood its full implications until I experienced it firsthand. As our office handles many civil rights complaints from inmates in the state prison and county house of corrections systems, I had the opportunity to interview clients regarding such issues. Although our office conducts all of its legal work through volunteer attorneys who require our assistance only periodically, in most situations involving client interaction I assisted the attorneys and gave little or no input. In one particular case, however, I conducted the interview myself.
The client contacted us complaining that his visitation rights had been severely restricted because of an administrative snafu. In order to obtain documents detailing the timeline of the restrictions and to ascertain what the client had been told by relevant authorities, I embarked on my first solo interview. Upon arriving on the prison grounds, I told the guards who I was, under whose authority I was visiting, and who I was there to see, and. After completing the necessary verification procedures, I was admitted to the attorney visiting room. Only when I saw another attorney and his assistant enter the visiting room next door, did I fully comprehend my situation – I was there by myself, and although there may be subsequent interviews were the need to arise, the information that I am able to recall and record from this interview is all that my supervising attorney is going to be able to use to determine the feasibility of the case.
After offering him a soda and a snack as any good prison attorney would, with the best “lawyer” tone of voice I could muster, I tell him “I read your complaint, and I’m very sorry that you’re in this unfortunate situation.” Then I asked: “So, can you describe in detail to me how this came about?” The client proceeded to show me the new rules, the old rules, and tells me how upset he is that his wife cannot visit him. I tried to comfort him in every way possible except giving any legal advice, and after reminding him that I cannot give such advice because I am not an attorney, I do what the supervising attorney instructed me to do. “You’re familiar with the Prison Litigation Reform Act, right? That requires you to exhaust every avenue of remedy before pursuing a lawsuit. How far up the chain of command have you gone?” He explained to me that he sent a complaint to the Commissioner, upon which I told him that we must wait for a response. I conclude the interview, and briefly discuss my work with the New Hampshire Civil Liberties Union and my law school career.
Although at the interview stage I did not have to exercise much judgment, I felt empowered by the enormous reliance the client placed on me, and the realization of the importance of being able to interact well the client. Additionally, there was something deeply satisfying about assisting an identifiable individual in a way I never thought possible.
After the interview, I felt as though I tasted the essence of what it means to be a lawyer – that is, helping people, and to this day, it inspires me to continue pursuing the legal profession. This was an unexpected realization because I thought that working with a civil liberties organization entailed advocacy on a broad scale without too much concern for any particular individual. My work included such broad advocacy, but at the base, it is always about the individual.
And yes, as a result of my work the authorities reinstated the client’s visitation rights.