Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 1 of 30 PageID #: 383 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

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1 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 1 of 30 PageID #: 383 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE F REAL FOODS, LLC, v. Plaintiff, HAMILTON BEACH BRANDS, INC., HERSHEY CREAMERY COMPANY and PAUL MILLS d/b/a MILLS BROTHERS MARKETS, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) C.A. No (GMS) (MPT) FINAL JOINT CLAIM CONSTRUCTION CHARTS Plaintiff f real Foods, LLC ( f real ) and Defendants Hamilton Beach Brands, Inc., Hershey Creamery Company, and Paul Mills (collectively, Defendants ), having met and conferred, hereby submit the parties Final Joint Claim Construction Charts pursuant to the Scheduling Order (D.I. 25) entered by the Court on January 30, 2015 (D.I. 26). Attached hereto as Exhibit A is a listing of claim terms with proposed constructions that the parties have agreed upon. Final Joint Claim Charts with disputed claim terms of U.S. Patent Nos. 7,144,150 ( the 150 patent ), 7,520,658 ( the 658 patent ), 7,520,662 ( the 662 patent ), and 5,803,377 ( the 377 patent ), are attached as Exhibits B, C, D, and E, respectively. Each Final Joint Claim Chart identifies the disputed claim terms of each patent, the parties proposed constructions for the disputed claim terms, and the intrinsic evidence identified by each party in support of their respective proposed constructions. The parties reserve the right to cite to other portions of the intrinsic record, including, but not limited to, intrinsic evidence cited by any other party.

2 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 2 of 30 PageID #: 384 MORRIS, NICHOLS, ARSHT & TUNNELL LLP /s/ Ethan H. Townsend Rodger D. Smith II (#3778) Ethan H. Townsend (#5813) Eleanor G. Tennyson (#5812) 1201 North Market Street P.O. Box 1347 Wilmington, DE (302) rsmith@mnat.com etownsend@mnat.com etennyson@mnat.com Attorneys for Plaintiff f real Food, LLC OF COUNSEL: Guy W. Chambers Ellen P. Liu SIDEMAN & BANCROFT LLP One Embarcadero Center Twenty-Second Floor San Francisco, CA POTTER ANDERSON & CORROON LLP /s/ David E. Moore Richard L. Horwitz (#2246) David E. Moore (#3983) Bindu A. Palapura (#5370) 1313 North Market Street Hercules Plaza, 6 th Floor Wilmington, DE (302) rhorwitz@potteranderson.com dmoore@potteranderson.com bpalapura@potteranderson.com Attorneys for Defendants Hamilton Beach Brands, Inc., Hershey Creamery Company and Paul Mills d/b/a Mills Brothers Markets OF COUNSEL: Attorneys for Defendant Hamilton Beach Brands, Inc.: William S. Foster, Jr. David M. Schlitz Mark S. Zhai BAKER BOTTS L.L.P. The Warner 1299 Pennsylvania Ave., NW Washington, DC Attorneys for Defendants Hershey Creamery Company and Paul Mills d/b/a Mills Brothers Markets: Kevin M. Gold Timothy J. Nieman RHOADS & SINON LLP One South Market Square, 12th Floor Harrisburg, PA July 28,

3 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 3 of 30 PageID #: 385 EXHIBIT A

4 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 4 of 30 PageID #: 386 JOINT CLAIM CHART EXHIBIT A: CLAIM CONSTRUCTIONS AGREED UPON BY THE PARTIES Claim Term Asserted Patent Claim(s) Agreed Upon Construction vessel 150 Patent, Claim Patent, Claims 1, Patent, Claim 21 splash shield / shield 150 Patent, Claims 15, Patent, Claims 1, 5, 6, Patent, Claim 21 cup or container lid for the cup opening splash shield positionable covering the opening of the vessel 150 Patent, Claim 15 lid positionable to cover the cup opening splash shield... covering the opening of the vessel splash shield shielding the vessel opening positioning the shield in contact with the vessel to cover the opening of the vessel at least one nozzle coupled to a source of rinse fluid and oriented to direct fluid onto the splash shield within the rinse chamber 658 Patent, Claim 1 a lid covering the cup opening 662 Patent, Claim 21 a lid covering the cup opening 658 Patent, Claim 6 positioning the splash shield lid in contact with the cup opening in order to cover the cup opening 150 Patent, Claim 15 one or more nozzles coupled to a rinse fluid source and oriented to direct fluid onto a surface of the splash shield within the rinse chamber characteristic of a cup 377 Patent, Claims 9, 10, 25 a physical attribute of a cup cup sensor [If this term is not governed by 112, 6] 377 Patent, Claims 5, 6, 9, 19, a transducer that detects the presence, size or other physical attributes of a cup and provides a corresponding output

5 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 5 of 30 PageID #: 387 EXHIBIT B

6 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 6 of 30 PageID #: 388 JOINT CLAIM CHART EXHIBIT B: DISPUTED CLAIM TERMS OF U.S. PATENT NO. 7,144,150 rinse chamber (Claim 15) sufficient mass to retain the vessel within the holder during relative movement of the mixing element and vessel in opposite directions (Claim 22) an enclosure in which a rinse apparatus is positioned to provide rinsing 150 Patent, 3:44-47; Figs. 1 and Patent Prosecution History, Applicant s Response dated April 25, 2006 at 6-7. f real believes this claim term should be construed using its plain meaning. Alternatively, f real proposes: [the splash shield applies] sufficient mass to the vessel to retain the vessel within the holder during relative axial movement of the mixing element and vessel in opposite directions 150 Patent, 2:20-22; 4:4-29, Figs. 1-3 enclosure in which rinsing occurs and within which the rinsing and rinse fluid is confined 150 Patent, 2:7-12; 3:33-47; 4:30-40; Figs. 1, Patent Prosecution History, Applicant s Response dated April 25, 2006 at 6-7. enough weight to keep the vessel seated within the holder during relative movement of the mixing element and vessel without any additional mechanical means of retaining the vessel within the holder 150 Patent, 2:20-22; 4:4-29; Figs Patent Prosecution History, Office Action dated October 4, 2005 at Patent Prosecution History, Applicant s Response dated March 27, 2007 at 5-6; Office Action dated June 4, 2007 at 2-7; Applicant s Response dated December 4, 2007 at 5-6; Applicant s Response dated August 22, 2008 at 6.

7 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 7 of 30 PageID #: 389 EXHIBIT C

8 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 8 of 30 PageID #: 390 JOINT CLAIM CHART EXHIBIT C: DISPUTED CLAIM TERMS OF U.S. PATENT NO. 7,520,658 sufficient mass to retain the vessel within the holder during relative axial movement of the mixing element and vessel from the first position to the second position when liquid is present in the vessel (Claim 1) / the mass of the splash shield preventing separation of the holder and the vessel during translation (Claim 6) f real believes this claim term should be construed using its plain meaning. Alternatively, f real proposes the following construction: [the splash shield applies] sufficient mass to the vessel to retain the vessel within the holder during relative axial movement of the mixing element and vessel (claim 1)/ [the splash shield applies] sufficient mass to the vessel to prevent separation of the holder and the vessel during translation (claim 6) 658 Patent, 2:17-19, 3:65 4: Patent, Figs Patent Prosecution History, Applicant s Response dated March 27, 2007 at 5-6 enough weight to keep the vessel seated within the holder during relative movement of the mixing element and vessel without any additional mechanical means of retaining the vessel within the holder 658 Patent, 3:65-4:24; Figs Patent Prosecution History, Applicant s Response dated March 27, 2007 at 5-6; Office Action dated June 4, 2007 at 2-7; Applicant s Response dated December 4, 2007 at 5-6; Applicant s Response dated August 22, 2008 at 6. RE25490 (reissue of U.S. Patent No. 3,037,749 to Stubler) U.S. Patent No. 4,822,175 to Barnard

9 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 9 of 30 PageID #: 391 unrestrained against sliding movement on the shaft in a direction away from the opening (Claim 1) / unrestrained against upward movement away from the opening (Claim 6) providing a mixing machine (Claim 6) [the splash shield] is unrestrained in its ability to slide upward on the rotatable mixing shaft in a direction away from the vessel opening 658 Patent, 3:22-27, 3:54-58, Figs. 2-6 having a mixing machine which is available for use 658 Patent, 3:48-64 without any external force acting against sliding movement on the shaft in a direction away from the opening (Claim 1) / without any external force acting against upward movement away from the opening (Claim 6) 658 Patent, 3:65-4:24; Figs Patent Prosecution History, Applicant s Response dated March 27, 2007 at 5-6; Office Action dated June 4, 2007 at 2-7; Applicant s Response dated December 4, 2007 at 5-6; Office Action dated February 22, 2008 at 4-6 Applicant s Response dated August 22, 2008 at 6. RE25490 (reissue of U.S. Patent No. 3,037,749 to Stubler) U.S. Patent No. 5,145,250 to Planck U.S. Patent No. 1,090,148 to Harr U.S. Patent No. 4,822,175 to Barnard making a mixing machine available for use 658 Patent, 1:63-67; 2:38-41; 3: U.S. Patent No. 6,326,047 to Farrell 2

10 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 10 of 30 PageID #: 392 EXHIBIT D

11 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 11 of 30 PageID #: 393 JOINT CLAIM CHART EXHIBIT D: DISPUTED CLAIM TERMS OF U.S. PATENT NO. 7,520,662 while isolating the vessel from the rinsing fluid (Claim 21) providing a mixing machine (Claim 21) f real believes this claim term should be construed using its plain meaning. Alternatively, f real proposes the following construction: while separating the vessel from the rinsing fluid 662 Patent, 5:9-36, Figs. 1A, 1B and Patent, claims 1, (claim differentiation) having a mixing machine which is available for use 662 Patent, 4: Patent, claims (claim differentiation) at the same time blocking the rinse fluid from the vessel 662 Patent, 5:17-36; Figs. 1, Patent Prosecution History, Office Action dated October 22, 2008 at 2; Applicant s Response dated November 11, 2008 at Patent Prosecution History, Applicant s Response dated April 25, 2006 at 6-7. U.S. Patent No. 4,637,221 to Levine U.S. Patent No. 5,439,289 to Nielson making a mixing machine available for use 662 Patent, Claims 1, 13-16, 21, 2:48-51; 3:63-4:49. U.S. Patent No. 6,326,047 to Farrell

12 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 12 of 30 PageID #: 394 EXHIBIT E

13 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 13 of 30 PageID #: 395 JOINT CLAIM CHART EXHIBIT E: DISPUTED CLAIM TERMS OF U.S. PATENT NO. 5,803,377 frozen substance (Claims 1, 11, 27) f real believes this claim term should be construed using its plain meaning. Alternatively, f real proposes the following construction: frozen ingredient(s) 377 Patent, 3:45-67, Fig. 1 ingredients of a drink that are frozen into a solid block with no air incorporated within 377 Patent, 3: Patent Prosecution History, Applicant s Response dated February 2, 1998 at U.S. Patent No. 5,962,060 to Farrell 060 Patent Prosecution History, Rejection dated ; Response dated ; Rejection dated ; Interview Summary ; Response dated ; Rejection dated ; Response dated ; Interview Summary ; Interview Summary ; Rejection dated ; Interview Summary ; Response dated ; Interview Summary Arbuckle, Ice Cream, 3rd Edition, (1977), pp ,

14 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 14 of 30 PageID #: 396 grinding means for... grinding the frozen substance to form a ground substance (Claim 1) Function: grinding the frozen substance to form a ground substance Structure: sharp depressed edge(s) of a rotatable blade 377 Patent, 7:7-35, 7:52-54, 8: Patent, Figs. 10A and 10C Function: Grating the frozen substance in the cup into small frozen particles Structure: An arrangement of three sets of three holes, each hole including adjacent depressed region on a trailing edge of the holes, formed on a blade and spaced 120 apart rotationally and at specific radiuses from the center of the blade such that as the blade makes one complete rotation, the entire surface area of the frozen substance will have been passed over by three holes to grate through the frozen substance like a cheese grater, and three pairs of cutouts formed along the perimeter of the blade that are spaced apart 120 from each other and also include a depressed trailing edge. 377 Patent, 7:7-35, 7:52-54, 8:42; Figs. 10A-C 377 Patent Prosecution History, Applicant s Response dated February 2, 1998 at U.S. Patent No. 5,962,060 to Farrell. 060 Patent Prosecution History, Rejection dated ; Response dated ; Rejection dated ; Interview Summary ; Response dated ; Rejection dated ; Response dated ; Interview Summary ; Interview Summary ; Rejection dated ; Interview Summary ; Response dated ; Interview Summary Arbuckle, Ice Cream, 3rd Edition, (1977), pp ,

15 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 15 of 30 PageID #: 397 shaving elements (Claims 11, 13, 27) Function: shaving a frozen substance Structure: sharp depressed edge(s) of a rotatable blade 377 Patent, 7:7-35, 7:52-54, 8: Patent, Figs. 10A and 10C This term invokes 112, 6, see, e.g., Williamson v. Citrix Online, LLC, No , 2015 WL , at *8 (Fed. Cir. June 16, 2015), such that it should be treated as a means-plus-function limitation with the following function and structure. Function: Cutting away slices from the surface of the frozen substance when the blade is rotated against the surface. Structure: The specification does not disclose any structure that shaves the frozen substance, and thus the element is invalid. Rather, the specification describes a grating structure that includes sharp edges of depressed regions on trailing edges of both holes over the entire surface area of the blade and cutouts at the perimeter of the blade, the holes and cutouts arranged so that the entire surface area of the frozen substance will have been passed over as the blade makes one rotation, the depressed regions on the trailing edges cut away slices from the surface of the frozen substance. 377 Patent, 7:7-35, 7:52-54, 8:42; Figs. 10A-C 377 Patent Prosecution History, Applicant s Response dated February 2, 1998 at U.S. Patent No. 5,962,060 to Farrell. 060 Patent Prosecution History, Rejection dated ; Response dated ; Rejection dated ; Interview Summary ; Response dated ; Rejection dated ; Response dated ; 3

16 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 16 of 30 PageID #: 398 Interview Summary ; Interview Summary ; Rejection dated ; Interview Summary ; Response dated ; Interview Summary Arbuckle, Ice Cream, 3rd Edition, (1977), pp ,

17 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 17 of 30 PageID #: 399 aeration means for... causing air to be incorporated into a mixture (Claim 1) Function: causing air to be incorporated into a mixture Structure: curved, wave-like structure(s) on a rotatable blade 377 Patent, 7:36-47, 8:42, Fig. 10B Function: Causing air to be incorporated into the mixture formed by the frozen substance and a liquid to increase the total volume by at least 15%. Structure: Three waves formed on a blade including the grinding means, each wave having three creases approximately 1/2 inch in length and extending radially from the perimeter of the blade, the center crease being elevated above the plane of the blade and two side creases in the plane of the blade that are configured to create alternately high and low pressure zones at the blade s edge. 377 Patent, 2:1-11; 7:36-47; 11:20-40; Figs. 10A-C 377 Patent Prosecution History, Applicant s Response dated February 2, 1998 at U.S. Patent No. 5,962,060 to Farrell U.S. Patent No. 3,295,997 to Tomlinson U.S. Patent No. 5,580,007 to Caviezel U.S. Patent No. 5,599,103 to Linscott 060 Patent Prosecution History, Rejection dated ; Response dated ; Rejection dated ; Interview Summary ; Response dated ; Rejection dated ; Response dated ; Interview Summary ; Interview Summary ; Rejection dated ; Interview Summary ; Response dated ; Interview Summary Arbuckle, Ice Cream, 3rd Edition, (1977), pp ,

18 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 18 of 30 PageID #: 400 aeration elements (Claims 3, 11, 13, 14, 27) Function: causing air to be incorporated into a mixture Structure: curved, wave-like structure(s) on a rotatable blade 377 Patent, 7:36-47, 8:42, Fig. 10B This term invokes 112, 6, see, e.g., Williamson v. Citrix Online, LLC, No , 2015 WL , at *8 (Fed. Cir. June 16, 2015), such that it should be treated as a means-plus-function limitation with the following function and structure. Function: Causing air to be incorporated into the mixture formed by the frozen substance and a liquid to increase the total volume by at least 15%. Structure: Three waves formed on a blade including the grinding means, each wave having three creases approximately 1/2 inch in length and extending radially from the perimeter of the blade, the center crease being elevated above the plane of the blade and two side creases in the plane of the blade that are configured to create alternately high and low pressure zones at the blade s edge. 377 Patent, 2:1-11; 7:36-47; 11:20-40; Figs. 10A-C 377 Patent Prosecution History, Applicant s Response dated February 2, 1998 at U.S. Patent No. 5,962,060 to Farrell U.S. Patent No. 3,295,997 to Tomlinson U.S. Patent No. 5,580,007 to Caviezel U.S. Patent No. 5,599,103 to Linscott 060 Patent Prosecution History, Rejection dated ; Response dated ; Rejection dated ; Interview Summary ; Response dated ; Rejection dated ; Response dated ; 6

19 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 19 of 30 PageID #: 401 Interview Summary ; Interview Summary ; Rejection dated ; Interview Summary ; Response dated ; Interview Summary Arbuckle, Ice Cream, 3rd Edition, (1977), pp , whipping effect (Claims 3, 14) creating turbulent eddies while mixing ingredient(s) 377 Patent, 7:43-47 incorporation of air into the mixture by turbulent eddies resulting from alternately high and low pressure zones in the mixture such that there is an increase in the volume by at least 15% 377 Patent, 2:1-11; 7:36-47; 11:20-40; Figs. 10A-C 377 Patent Prosecution History, Applicant s Response dated February 2, 1998 at U.S. Patent No. 5,962,060 to Farrell U.S. Patent No. 3,295,997 to Tomlinson U.S. Patent No. 5,580,007 to Caviezel U.S. Patent No. 5,599,103 to Linscott 060 Patent Prosecution History, Rejection dated ; Response dated ; Rejection dated ; Interview Summary ; Response dated ; Rejection dated ; Response dated ; Interview Summary ; Interview Summary ; Rejection dated ; Interview Summary ; Response dated ; Interview Summary Arbuckle, Ice Cream, 3rd Edition, (1977), pp ,

20 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 20 of 30 PageID #: 402 means for... directing liquid from above the upper surface of the blade assembly to below the blade assembly (Claim 17) blade assembly including shaving elements and aeration elements thereon (Claim 27) Function: Directing liquid from above the upper surface of the blade assembly to below the blade assembly Structure: elevated edge of a rotatable blade which acts as an inverted ramped surface 377 Patent, 7:55-64, Fig. 10B Once the meaning of shaving elements and aeration elements has been determined, f real believes this claim term should be construed using its plain meaning 377 Patent; 7:7-47, 8:42, Figs. 10A and 10C Function: Directing liquid from above the upper surface of the blade assembly to below the blade assembly Structure: A rotating blade having three pairs of cutouts at the perimeter of the blade spaced 120º from each other, the cutouts including a trailing edge that is elevated above the rotational plane of the blade to form an inverted ramped surface for the liquid. 377 Patent, 7:48-65, Fig. 10A-C. a single blade having both a plurality of shaving elements and a plurality of aeration elements 377 Patent, 7:7-57; Figs. 10A-C 377 Patent Prosecution History, Applicant s Response dated February 2, 1998 at

21 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 21 of 30 PageID #: 403 control means for causing the blade assembly to move between the upper and lower blade positions at least twice (Claims 4, 18) control means for generating up and down blade movement control Function: Causing the blade assembly to move between the upper and lower blade positions at least twice Structure: A microprocessor programmed to instruct the carriage motor to move the blade assembly between the upper and lower blade positions at least twice 377 Patent, 8:1-11:18, especially 9:20-29 Function: Generating up and down blade movement control signals and blade rotation control signals Function: Causing the blade assembly to move between the upper and lower blade positions. Structure: Microprocessor including a memory having lookup tables with cup size dependent values stored therein, the microprocessor electronically coupled to an optical detector, consisting of a light source and receiver, and a pair of limit switches. The microprocessor programmed to: (1) determine which limit switches (acting as cup sensor) are closed; (2) retrieve certain cup size-dependent values from look up tables stored in its memory based on the determination related to the limit switches to determine the upper and lower blade positions; (3) instruct a carriage motor to advance a carriage to position the blade just above the surface of the frozen block; (4) then direct the carriage motor to advance the carriage to move the blade to the bottom of the cup; and (5) receiving a signal from the optical detector indicating that the blade has reached the bottom of the cup, (6) after receiving a signal from the optical detector indicating that the blade has reached the bottom of the cup, instructing the carriage motor to move the carriage vertically upward by an amount which will position the blade approximately one inch below the milkshake surface whereby steps (4) and (5) are repeated. 377 Patent, 9:64-11:18; Fig. 11. Function: Generating up and down blade movement control signals and blade rotation control signals. 9

22 signals and blade rotation control signals (Claim 6) Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 22 of 30 PageID #: 404 Structure: A microprocessor programmed to generate control signals for the carriage motor to move the blade assembly up and down and for the blade motor to rotate the blade 377 Patent, 8:1-11:18 Structure: Microprocessor including a memory having lookup tables with cup size-dependent values stored therein, the microprocessor electronically coupled to an optical detector consisting of a light source and receiver. The microprocessor programmed to: (1) determine the size of the cup based on the information from the cup sensor (claim 6) or which limit switches are closed (claim 21); (2) retrieve certain cup size-dependent values from look up tables stored in its memory based on the determination related to the cup size to determine the distance the carriage must move to position the blade relative to the bottom of the cup and the top surface of the block of frozen substance in a cup. For the up and down blade movement control signals, the microprocessor is programmed to: (3) instruct a carriage motor to advance a carriage to position the blade just above the surface of the frozen block; (4) then direct the carriage motor to advance the carriage to move the blade to the bottom of the cup; (5) receiving a signal from the optical detector indicating that the blade has reached the bottom of the cup, and (6) after receiving a signal from the optical detector indicating that the blade has reached the bottom of the cup, instructing the carriage motor to move the carriage vertically upward by an amount which will position the blade approximately one inch below the milkshake surface, move the carriage above the milkshake surface, and move the carriage to the home position. For the blade rotation signal, the microprocessor programmed to: (7) generate control signals which control the carriage motor blade motor based on the values; and (8) direct the blade motor to deactivate and thereby slow the rotation of the 10

23 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 23 of 30 PageID #: 405 blade. 377 Patent, 9:64-11:18; Fig. 11. control means for generating slidable blade shaft movement control signals and blade rotation control signals (Claim 21) Function: Generating slidable blade shaft movement control signals and blade rotation control signals Structure: A microprocessor programmed to generate control signals for the carriage motor to slide the blade shaft up and down in the cup and for the blade motor to rotate the blade 377 Patent, 8:1-11:18 Function: Generating slidable blade shaft movement control signals and blade rotation control signals. Structure: Microprocessor including a memory having lookup tables with cup size-dependent values stored therein, the microprocessor electronically coupled to an optical detector, consisting of a light source and receiver, and a pair of limit switches. The microprocessor programmed to: (1) determine the size of the cup based on which limit switches are closed; (2) retrieve certain cup size-dependent values from look up tables stored in its memory based on the determination related to the cup size to determine the distance the carriage must move to position the blade relative to the bottom of the cup and the top surface of the block of frozen substance in a cup. For the slidable movement control signals, see the up and down blade movement control signals of term 7 of the 377 patent. For the blade rotation signals, same as term 7 of the 377 patent. 377 Patent, 9:64-11:18; Fig

24 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 24 of 30 PageID #: 406 control means is further for generating blade speed control signals to reduce the rotational speed of the blade assembly when the blade assembly is moved to a first level and to increase the rotational speed of the blade assembly when the blade assembly is moved to a second level (Claim 7) Function: Generating blade control signals to reduce the rotational speed of the blade assembly when the blade assembly is moved to a first level just below the milkshake surface and to increase the rotational speed of the blade assembly when the blade assembly is moved to a second level just above the milkshake surface Structure: A microprocessor programmed to generate a control signal to the blade motor as mixing is being completed to reduce the rotational speed of the blade when it is just below the milkshake surface (first level) and then, for spin-off, to increase the rotational speed of the blade when it is just above the milkshake surface (second level) 377 Patent, 8:1-11:18, especially 9:30-47 and 11:6-10 Function: Generating blade speed control signals to reduce the rotational speed of the blade assembly when the blade assembly is moved to a first level and to increase the rotational speed of the blade assembly when the blade assembly is moved to a second level Structure: Microprocessor including a memory having lookup tables with cup size-dependent values stored therein, the microprocessor electronically coupled to an optical detector, consisting of a light source and receiver, and a pair of limit switches. The microprocessor programmed to: (1) determine the size of the cup based on which limit switches are closed; (2) retrieve certain cup size-dependent values from look up tables stored in its memory based on the determination related to the cup size to determine the first and second levels; (3) instruct a carriage motor to advance a carriage to position the blade just above the surface of the frozen block based on the retrieved values; (4) initiate rotation of the motor; (5); instruct the carriage motor to move the carriage vertically upward by an amount which will position the blade approximately one inch below the milkshake surface after receiving a signal from the optical detector indicating that the blade has reached the bottom of the cup; and (7) direct the blade motor to deactivate and thereby slow the rotation of the blade. 377 Patent, 9:64-11:18; Fig

25 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 25 of 30 PageID #: 407 control means for generating blade speed control signals to reduce the rotational speed of the blade assembly when the blade assembly is moved to a first level and to increase the rotational speed of the blade assembly when the blade assembly is moved to a second level (Claim 23) Function: Generating blade control signals to reduce the rotational speed of the blade assembly when the blade assembly is moved to a first level when it is just below the milkshake surface and then, for spin-off, to increase the rotational speed of the blade assembly when the blade assembly is moved to a second level just above the milkshake surface Structure: A microprocessor programmed to generate a control signal to the blade motor as mixing is being completed to reduce the rotational speed of the blade just below the milkshake surface (first level) and then, for spin-off, increase the rotational speed of the blade when it is just above the milkshake surface (second level) 377 Patent, 8:1-11:18, especially 9:30-47 and 11:6-10 Function: Generating blade speed control signals to reduce the rotational speed of the blade assembly when the blade assembly is moved to a first level and to increase the rotational speed of the blade assembly when the blade assembly is moved to a second level Structure: Microprocessor including a memory having lookup tables with cup size-dependent values stored therein, the microprocessor electronically coupled to an optical detector consisting of a light source and receiver. The microprocessor programmed to: (1) determine the size of the cup based on the information from the cup sensor; (2) retrieve certain cup size-dependent values from look up tables stored in its memory based on the determination related to the cup size to determine the first and second levels; (3) instruct a carriage motor to advance a carriage to position the blade just above the surface of the frozen block based on the retrieved values; (4) initiate rotation of the motor; (5); instruct the carriage motor to move the carriage vertically upward by an amount which will position the blade approximately one inch below the milkshake surface after receiving a signal from the optical detector indicating that the blade has reached the bottom of the cup; and (7) direct the blade motor to deactivate and thereby slow the rotation of the blade. 377 Patent, 9:64-11:18; Fig

26 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 26 of 30 PageID #: 408 control means for generating liquid dispensing control signals which correspond to the characteristic of the cup detected by the cup sensor, the liquid dispenser being responsive to the liquid dispensing control signals [to dispense liquid into the cup] (claims 9, 25) Function: Generating liquid dispensing control signals which correspond to the characteristic of the cup detected by the cup sensor, the liquid dispenser being responsive to the liquid control signals Structure: A microprocessor programmed to generate control signals to dispense an amount of liquid appropriate to the size of the cup as detected by the cup sensor 377 Patent, 8:1-11:18, especially 10:49-52 Function: Generating liquid dispensing control signals which correspond to the size of the cup detected by the cup sensor, the liquid dispenser being responsive to the liquid dispensing control signals to dispense liquid into the cup. Structure: Microprocessor including a memory having lookup tables with cup size-dependent values stored therein, the microprocessor programmed to (1) determine the size of the cup based on the information from the cup sensor; (2) retrieve certain cup size-dependent values from look up tables stored in its memory based on the determination related to the cup size to determine the length of time for which the peristaltic pump will be made to pump milk into the cup; (3) use the stored values retrieved to generate control signals which control the peristaltic pump; and (4) deliver control signals to the peristaltic pump to pump milk into the cup through opening for the amount of time which will deliver the proper quantity of milk into the cup. 377 Patent, 9:64-11:18; Fig

27 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 27 of 30 PageID #: 409 control means responsive to activation of the initiation switch and to the output of the cup sensor to cause the blade assembly to rotate and to be lowered into a cup when a cup is positioned into the cup support when a cup is detected in the cup support and when a user activates the initiation switch (Claim 19) / control means further for generating the blade movement control signals and the blade rotation control signals in response to activation of the initiation switch and the output of the cup sensor to allow the blade assembly to rotate and to be lowered into a cup when a cup is detected in the cup support and when a user activates the initiation switch (Claim 22) control means responsive to the output of the cup sensor for generating blade Function: Generating the blade movement control signals and the blade rotation control signals in response to activation of the initiation switch and the output of the cup sensor to allow the blade assembly to rotate and to be lowered into a cup when a cup is detected in the cup support and when a user activates the initiation switch Structure: A microprocessor programmed to generate, after receiving appropriate inputs from the initiation switch that the user wants to begin blending and from the cup sensor that a cup is detected in the cup support, control signals to the carriage motor to lower the blade assembly into the cup and to the blade motor to rotate the blade assembly 377 Patent, 8:1-11: Patent, claims 5, 24 (claim differentiation) Function: Generating blade rotation speed and vertical blade positioning control signals which correspond to the Function: Generating the blade movement control signals and the blade rotation control signals in response to activation of the initiation switch and the output of the cup sensor to allow the blade assembly to rotate and to be lowered into a cup when a cup is detected in the cup support and when a user activates the initiation switch. Structure: Microprocessor programmed to detect whether at least one of the limit switches is closed (i.e., cup sensor), which indicates the presence of a cup in the cup housing, and commence the drink making operation if the limit switch is closed when a user activates the initiation switch. 377 Patent, 9:64-11:18; Fig. 11. Function: Generating blade rotation speed and vertical blade positioning control signals which correspond to the 15

28 rotation speed and vertical blade positioning control signals which correspond to the size of the cup detected by the cup sensor (Claims 5, 24) Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 28 of 30 PageID #: 410 size of the cup detected by the cup sensor Structure: A microprocessor programmed to generate control signals for the carriage motor to vertically position the blade assembly and for the blade motor to rotate the blade at pre-determined speeds corresponding to the size of the cup detected by the cup sensor 377 Patent, 8:1-11:18 size of the cup detected by the cup sensor Structure: Microprocessor including a memory having lookup tables with cup size-dependent values stored therein, the microprocessor electronically coupled to an optical detector consisting of a light source and receiver. The microprocessor programmed to: (1) determine the size of the cup based on the information from the cup sensor; (2) retrieve certain cup size-dependent values from look up tables stored in its memory based on the determination related to the cup size to determine the distance the carriage must move to position the blade relative to the bottom of the cup and the top surface of the block of frozen substance in a cup. For the vertical blade positioning control signals, the microprocessor is programmed to: (3) instruct a carriage motor to advance a carriage to position the blade just above the surface of the frozen block; (4) then direct the carriage motor to advance the carriage to move the blade to the bottom of the cup; (5) receiving a signal from the optical detector indicating that the blade has reached the bottom of the cup, and (6) after receiving a signal from the optical detector indicating that the blade has reached the bottom of the cup, instructing the carriage motor to move the carriage vertically upward by an amount which will position the blade approximately one inch below the milkshake surface, move the carriage above the milkshake surface, and move the carriage to the home position. For the blade rotation speed signals, the microprocessor programmed to: (7) generate control signals which control the carriage motor blade motor based on the values; and (8) direct the blade motor to deactivate and thereby slow the rotation of 16

29 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 29 of 30 PageID #: 411 the blade. 377 Patent, 9:64-11:18; Fig. 11. a cup sensor for detecting the size of a cup in the cup support and for producing an output corresponding to the size of the cup (Claims 5, 24) Because cup sensor is a defined name for a structure(s), this is not a means-plus-function claim limitation. Based upon the agreed upon definition of cup sensor, f real believes that this claim term should be construed using its plain meaning. 377 Patent, 6:44-67; Figs. 8A-B This term invokes 112, 6, such that it should be treated as a means-plus-function limitation with the following function and structure. Function: Detecting the size of a cup in the cup support and for producing an output corresponding to the size of the cup Structure: Two limit switches electronically connected to a microprocessor, the limit switches arranged such that a small cup in the cup holder closes one limit switch and a large cup closes both limit switches. 377 Patent, 6:44-67; 9:64-10:17; Figs. 4A, 8A-B,

30 Case 1:14-cv GMS Document 59 Filed 07/28/15 Page 30 of 30 PageID #: 412 a cup sensor for detecting a characteristic of a cup in the cup support and for producing an output corresponding to the characteristic of the cup (Claims 9, 25) a cup sensor for detecting the presence of a cup in the cup support and for producing an output (Claims 6, 19, 22-23) Because cup sensor is a defined name for a structure, this is not a means-plus-function claim limitation. Based upon the agreed upon definition of cup sensor, f real believes that this claim term should be construed using its plain meaning. 377 Patent, 6:44-67; Figs. 8A-B Because cup sensor is a defined name for a structure, this is not a means-plus-function claim limitation. Based upon the agreed upon definition of cup sensor, f real believes that this claim term should be construed using its plain meaning. 377 Patent, 6:44-67; Figs. 8A-B This term invokes 112, 6, such that it should be treated as a means-plus-function limitation with the following function and structure: Function: Detecting the size of a cup in the cup support and for producing an output corresponding to the size of the cup Structure: Two limit switches electronically connected to a microprocessor, the limit switches arranged such that a small cup in the cup holder closes one limit switch and a large cup closes both limit switches. 377 Patent, 6:44-67; 9:64-10:17; Figs. 4A, 8A-B, 11. This term invokes 112, 6, such that it should be treated as a means-plus-function limitation with the following function and structure. Function: Detecting the presence of a cup in the cup support and for producing an output Structure: Two limit switches that, when either are closed, produces an output to a microprocessor 377 Patent, 6:44-67; 9:64-10:17; Figs. 4A, 8A-B,