       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                  TEASHOT.LLC,
        a Colorado limited liability company,
                 Plaintiff-Appellant,

                           v.

  GREEN MOUNTAIN COFFEE ROASTERS, INC.,
           a Delaware corporation,
         KEURIG, INCORPORATED,
         a Delaware corporation, AND
        STARBUCKS CORPORATION,
          a Washington corporation,
              Defendants-Appellees.
             ______________________

                      2014-1323
                ______________________

    Appeal from the United States District Court for the
District of Colorado in No. 1:12-CV-00189, Judge William
J. Martinez.
                  ______________________

               Decided: January 5, 2015
                ______________________

    ROBERT R. BRUNELLI, Sheridan Ross P.C., of Denver,
Colorado, argued for plaintiff-appellant. With him on the
brief were JOSEPH E. KOVARIK and DAVID B. KELLIS.
2           TEASHOT.LLC   v. GREEN MOUNTAIN COFFEE ROASTER



   MICHAEL A. ALBERT, Wolf, Greenfield & Sacks, P.C., of
Boston, Massachusetts, argued for defendants-appellees.
With him on the brief were GERALD B. HRYCYSZYN and
HUNTER D. KEETON. Of counsel on the brief were AARON
P. BRADFORD and ALEXANDER C. CLAYDEN, Lathrop &
Gage LLP, of Denver, Colorado.
                ______________________

    Before PROST, Chief Judge, MOORE and CHEN, Circuit
                          Judges.

PROST, Chief Judge.

    Teashot.LLC (“Teashot”) appeals from a final judg-
ment of the U.S. District Court for the District of Colorado
of non-infringement of U.S. Patent No. 5,895,672 (“’672
patent”) in favor of Green Mountain Coffee Roasters, Inc.,
Keurig, Inc., and Starbucks Corp. (collectively, “Green
Mountain”). For the reasons that follow, we affirm.

                        BACKGROUND

                          I. Patent

     The ’672 patent seeks to adapt prior art coffee pod
machines to make tea without the attendant weak taste
from the short brewing time. ’672 patent col. 1 l. 63–col. 2
l. 19. The ’672 patent thus teaches the use of special tea
composition in the known brewing pod or container as
reflected in representative claim 1:

     1. A tea extraction system for production of a serv-
     ing of tea extract in a coffee brewing device, com-
     prising:

     (a) a tea extraction container for containing a tea
     composition, said tea extraction container com-
     prising a sealed body having at least one internal
TEASHOT.LLC   v. GREEN MOUNTAIN COFFEE ROASTER            3



   compartment, said internal compartment contain-
   ing said tea composition;

   wherein said sealed body is constructed of a wa-
   ter-permeable material which allows flow of a flu-
   id through said sealed body to produce a tea
   extract from said tea composition; and,

   (b) a tea composition comprising from about 2
   grams to about 10 grams of tea having a particle
   size of from about 0.40 mm to about 0.75 mm.

               II. District Court Proceedings

    Teashot accuses Green Mountain’s tea-brewing K-
Cups of infringing the ’672 patent. The accused K-Cup
has a foil lid, which would be punctured by a needle to
inject water during use.




    The district court construed the claim element “sealed
body is constructed of a water-permeable material which
allows flow of a fluid through said sealed body to produce
a tea extract from said tea composition” as “the portions of
the sealed body into which fluid flows and out of which
fluid flows are water-permeable material allowing flow of
a fluid through said sealed body to produce a tea extract
from said tea composition.” Teashot LLC v. Green Moun-
tain Coffee Roasters, Inc., No. 12-CV-189, 2012 WL
4          TEASHOT.LLC   v. GREEN MOUNTAIN COFFEE ROASTER



5866443, at *3 (D. Colo. Nov. 19, 2012). The district court
concluded that the K-Cups do not literally infringe be-
cause the K-Cups do not have a “water-permeable materi-
al” for water to flow into the sealed bodies. Teashot LLC
v. Green Mountain Coffee Roasters, Inc., No. 12-CV-189,
2014 WL 485876, at *4–5 (D. Colo. Feb. 6, 2014). The
district court also found that Teashot “waived its right to
raise the doctrine of equivalents by failing to timely
disclose it as an infringement theory.” Id. at *6. The
district court therefore entered summary judgment of
non-infringement in favor of Green Mountain. Id. at *5,
*8.

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

                       DISCUSSION

                  I. Claim Construction

    Claim construction is a question of law that we review
de novo. Lighting Ballast Control LLC v. Philips Elecs. N.
Am. Corp., 744 F.3d 1272, 1276–77 (Fed. Cir. 2014) (en
banc).

    Teashot argues that the district court’s construction
deviates from the claim text and improperly imports
limitations from the specification by requiring fluid to
flow into and out of the sealed body through water-
permeable material. Green Mountain counters that the
phrase “which allows,” linking “water-permeable materi-
al” to the “flow of a fluid through said sealed body,” re-
TEASHOT.LLC   v. GREEN MOUNTAIN COFFEE ROASTER              5



quires that fluid flows through the “sealed body” via the
“water-permeable material”.

    We agree with Green Mountain that the claim text
identifies “water-permeable material” as the means
through which fluid could flow through the “sealed body.”
The specification confirms this conclusion. Every discus-
sion in the specification of fluid flowing through the
“sealed body” refers to the “water-permeable material.”
See, e.g., ’672 patent col. 2 ll. 48–52, col. 5 ll. 42–45. The
’672 patent mentions no other means through which fluid
could flow through the “sealed body.”

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

    Figure 4, however, is limited to disclosing an ar-
rangement in which multiple tea containers can be ac-
cessed individually to add different tea compositions, but
used together for brewing. See ’672 patent col. 7 l. 66-col.
8 l. 13. Figure 4 and its descriptions do not show any
details of entry or exit means in the containers for water
to flow through. From this silence, we cannot assume
Figure 4 to depart from the consistent teachings else-
where in the ’672 patent that water can flow through a
“sealed body” via a “water-permeable material.” We are
therefore not persuaded by Teashot that the district court
erred in construing this claim element.

       II. Summary Judgment of Non-Infringement

    We review a district court’s summary judgment de-
termination de novo. Smothers v. Solvay Chems., Inc.,
740 F.3d 530, 538 (10th Cir. 2014).
6           TEASHOT.LLC   v. GREEN MOUNTAIN COFFEE ROASTER



                 A. Literal Infringement

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

    Teashot does not dispute that its owner and the in-
ventor of the ’672 patent, in testimonies quoted by Green
Mountain, admitted that the lid of the K-Cup is not water
permeable. Teashot also does not dispute the following
admission that the mere puncturing of the K-Cup lid fails
to transform the material into a water-permeable materi-
al:

    Q Correct me if I’m wrong, when you puncture the
    foil lid, the actual foil remains water impermea-
    ble, correct?

    A The -- the foil around the hole, yes.

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

    A Correct.

    Q Hence the hole.

    A Right.

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

    A Correct.

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

   Nevertheless, Teashot contends that a factual dispute
remains as to whether the K-Cup’s lid, once punctured,
TEASHOT.LLC   v. GREEN MOUNTAIN COFFEE ROASTER             7



becomes a “water-permeable material.” Teashot cites no
support in the record that a skilled artisan would consider
“water-permeable material” to encompass material not
permeable to water but having merely a puncture hole.
We do not find Teashot’s unsupported arguments—
especially against its admissions quoted by Green Moun-
tain—create a genuine factual dispute sufficient to sur-
vive summary judgment.

     B. Exclusion of Doctrine of Equivalents Theory

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

    Teashot argues that the district court erred in impos-
ing a discovery sanction under Rule 37 because its in-
fringement contentions were not disclosed in response to
any interrogatory, subjecting Teashot to a duty to sup-
plement its disclosure under Rule 26(e). Teashot argues
that its infringement contentions were disclosed pursuant
instead to the district court’s scheduling order. Teashot
asserts that that the district court did not find a violation
of the scheduling ordering and that Teashot fully com-
plied with the scheduling order.

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



basis for the district court’s conclusion that “Plaintiff
waived its right to raise the doctrine of equivalents by
failing to timely disclose it as an infringement theory.”
Id. at *6.

    Teashot’s assertion on appeal that it “fully complied
with the Scheduling Order” is not supported by any
showing that it disclosed any doctrine of equivalents
theory by the deadline in the scheduling order. See Reply
Br. 17-18. Rather, Teashot’s assertion is based on its
argument that “the Scheduling Order is utterly silent
about any required contents of the infringement conten-
tions, and contains no supplementation prohibition.” Id.
But silence on the required contents of “infringement
contentions” does not mean that Teashot can choose to
disclose nothing about its doctrine of equivalents theory.
Silence on supplementation prohibition also does not
mean that Teashot can amend at will after the scheduling
order deadline. Teashot’s focus on what the scheduling
order is “silent” about glosses over Teashot’s disclosure
duties under the guise of ignorance.

    It was in the context of addressing Teashot’s claim of
ignorance that the district court compared Teashot’s duty
to disclose its infringement contentions under the sched-
uling order to a disclosure duty under Rule 26(e) in re-
sponse to a contention interrogatory. See Teashot, 2014
WL 485876, at *6 (“Plaintiff alleges that this did not
constitute waiver because nothing in this Court’s Schedul-
ing Order or Local Rules required it to disclose this theory
any earlier in the litigation.”). The district court dis-
missed Teashot’s arguments because “Plaintiff’s attorneys
are experienced patent litigators, who are reasonably
expected to understand that infringement contentions—
whether responsive to a contention interrogatory, re-
quired by local patent rules, or included in a scheduling
order—should specify what infringement theories the
party is pursuing.” Id. at *7.
TEASHOT.LLC   v. GREEN MOUNTAIN COFFEE ROASTER           9



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

                       AFFIRMED
