Default Proof Credit Card System, Inc. v. Home Depot U.S.A., Inc. (389 F. Supp. 2d 1325, 2004)

United States District Court for the Southern District of Florida 2004-09-30

Citations

Full opinion text

ORDER ON PENDING MOTIONS

ALTONAGA, District Judge.

THIS CAUSE came before the Court upon Defendants, Starbucks and Wal-Mart’s Motion for Summary Judgment of Noninfringement (D.E.85), filed under seal; Defendant, Home Depot U.S.A., Inc.’s (“Home Depot”) Motion for an Order Construing Claim 1 of U.S. Patent No. 6,405,182 (D.E.89); Home Depot’s Motion for Summary Judgment that the Claims of U.S. Patent No. 6,405,182 are Invalid (D.E. 90); and Home Depot’s Motion for Summary Judgment that its Gift-Card Program does not Infringe any Claim of U.S. Patent No. 6,405,182 (D.E.94), filed under seal. The Court has carefully considered the written submissions of the parties, pertinent portions of the record, argument of counsel, and applicable law.

1. THE PLEADINGS

Plaintiff, Default Proof Credit Card System, Inc. (“Default Proof’) brought this action against Defendants, Starbucks, Wal-Mart and Home Depot (collectively “Defendants”) based on the alleged infringement of U.S. Patent No. 6,405,182 (the “ T82 Patent”). Vincent Cuervo (“Cuervo” or “Mr. Cuervo”), the inventor of the T82 Patent, was born in Cuba and practiced law there until 1960 when he emigrated to the United States. Cuervo took a job as a door-to-door life insurance salesman in Miami. Cuervo was able succeed in the life insurance business due, in part, to Ms development of a system for providing lines of credit to the owners of life insurance policies based upon the cash surrender values of such policies. Cuervo was awarded United States Patent Nos. 4,718,009 and 5,025,138 on this novel system.

In 1986, Cuervo founded Default Proof to develop and promote his patented system. Default Proof alleges that Cuervo next developed a system for dispensing prepaid debit cards through automated teller machines and point of sale terminals. In August 2000, Cuervo was granted U.S. Patent No. 6,105,009 (the “’009 Patent”) for a system of dispensing prepaid debit cards through automated teller machines. In June 2002, he was granted the ’182 Patent for a “System for Dispensing Prepaid Debit Cards Through Point-Of-Sale Terminals.” It is the 182 Patent that is the subject of this lawsuit. Default Proof alleges that Defendants have knowingly infringed at least Claim 1 of the 182 Patent through their manufacture, use, importation, sale and offer for sale of their respective store credit cards, electronic gift cards or other prepaid cards.

The First Amended Complaint, which is the operative pleading, was filed on April 24, 2003. It is a one-count Complaint for patent infringement arising under the patent laws of the United States, Title 35 of the United States Code. Default Proof seeks, inter alia, an injunction prohibiting further infringement and, specifically, en-joimng further importation, manufacture, use, offer for sale and/or sale of gift cards within the scope of the T82 Patent, and enjoining Defendants from contributing to and/or inducing infringement of the Y82 Patent.

Defendants answered the First Amended Complaint by asserting several affirmative defenses, including the defenses that Default Proof failed to state a claim upon which relief may be granted, that the claims of the T82 Patent are invalid for failure to comply with 35 U.S.C. §§ 102, 102, 103 and 112, and that Defendants have not infringed the claims of the ’182 Patent either literally or under the doctrine of equivalents. All of the Defendants have also filed counterclaims against Default Proof, in which they request: (1) a declaratory judgment of non-infringement and non-liability pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201; and (2) a declaratory judgment of invalidity pursuant to 28 U.S.C. § 2201. Defendants maintain that one or more claims of the 182 Patent are invalid under one or more of the following statutory provisions: 35 U.S.C. §§ 101, 102, 103 and 112. Home Depot has also sought a judgment declaring that the 182 Patent is unenforceable and/or invalid due to Default Proofs misuse thereof.

II. FACTUAL BACKGROUND

A. The ’182 Patent Specification

The 182 Patent is a continuation-in-part of the application that matured into the ’009 Patent on August 15, 2000. The ’009 Patent is incorporated by reference in the ’182 Patent. The ’182 Patent issued on June 11, 2002 to Vincent Cuervo. The title of the ’182 Patent is “System for Dispensing Prepaid Debit Cards Through Point^of-Sale Terminals.” The application number associated with the T82 Patent is 09/524,496 (the “ ’496 Application”).

The “Abstract” of the invention describes:

Point-of-Sale machines that allow individuals to obtain from participating merchants, “over-the-counter”, [sic] prepaid debit cards. The amount of the line of credit is determined from the amount prepaid and credited to the debit card issuer, as payment for a simple purchasing transaction of merchandise or services. In this case the transaction is the purchasing of a prepaid PIN (personal identification number) required debit card.

The prepaid debit cards will be instantly available and dispensed in different dollar amounts, after payment of the prepaid amount (line of credit) selected, and the purchaser has input required particular information and those of the transaction which are merged with one of the unique identification numbers and transmitted to a remote computer facility that acts as clearing house for the users’ transactions. The remote facility, the debit card issuer, includes input and output means to communicate with the point-of-sale terminal (debit card dispenser location) and the associated circuitry to obtain the identification numbers of the debit cards being dispensed and the particulars of the users and the transactions. Adequate software is provided in the remote facility to permit users to access the same line of credit opened for one or more debit cards so that different users can remotely access and affect one or more lines of credit,

(emphasis added).

The specification describes in the “Background of the Invention” that “[t]he present invention relates to a system for dispensing prepaid debit cards through computerized point-of-sale (POS) terminals.” (T82 Patent, col. 1, lines 13-15) (emphasis added). In the next section of the specification, entitled “Description of the Related Art,” the ’182 Patent notes that the closest reference of prior art:

corresponds to U.S. Pat. No. 5,696,908 issued to Muehlberger in 1997 for a telephone debit card dispenser and method. However, it differs from the present invention because it does not disclose the use of point-of-sale terminals (POS) to provide an injection on stacked “virgin” debit cards of any selected prepaid amount of funds (line of credit), security information (PINs, passwords, mother’s maiden name, etc). And to include conditions for the validation and availability of those funds or line of credit [sic].

(’182 Patent, col. 1, lines 23-32) (emphasis added).

The next section of the patent, entitled “Summary of the Invention,” discusses the purported “objects of the invention.” These are said to be, inter alia,: (1) “to provide a system for selling, dispensing and administering credit or debit cards” that “permits a user to acquire such debit or credit cards from widely available Point-of-Sale terminals using cash, debit and/or credit cards, check cards or ATM’s [sic] cards;” and (2) to “provide a system for selling, dispensing and administering credit or debit cards that require a minimum of paperwork, maintenance and financial disclosure from the card purchaser.” (Id. at col. 1, lines 40-49).

There are two Figures described in the “Brief Description of the Drawings” that follow. In this section, the invention is described as consisting of “the details of combinations of electronic transactions.” (Id. at col. 2, lines 7-8). The T82 Patent then includes two figures. Figure 1 is said to “represent! ] the hardware used in the present invention,” and Figure 2 “is a flow chart summarizing the process steps followed in typical transactions.” (Id. at col. 2, lines 11-14) (emphasis added). Figures 1 and 2 are included below in the Appendix to this Order.

In Figure 1 of the T82 Patent, a box labeled “DISPENSER” is numbered “40” and a separate box labeled “P.O.S.” is numbered 54. The two boxes are connected by a line. An arrow from the “DISPENSER” extends to another box labeled “D.C.,” which indisputably stands for “debit card.” The user of the device, numbered 30, is represented by a stick figure in Figure 1. In Figure 2 of the 182 Patent, the last step, after “D.C.C.H. VALIDATION,” is ‘VALIDATING DATA RECEIVED AND D.C. DISPENSED.”

The final section of the specification contains a single preferred embodiment and seven claims. The parties have limited their arguments in the pending motions to a discussion of Claim 1 of the Patent. Claim 1 of the 182 Patent reads as follows:

1. A system for dispensing and validating prepaid debit and credit cards, comprising:

A)a point-of-sale assembly including first computer means with associated first storage means that further include first input and output means for entering information from a user pertaining to his or her particulars and the particulars of the transaction in said first storage means, [sic] said first input means includes a keypad assembly, a bill acceptance port and a credit/debit card charge assembly and further including means for validating the funds made available through said input means so that a line of credit is computed by said first computer means and stored in said first storage means with a validation signal and a block of information is assembled and ready for transmission;

B) means for dispensing at least one debit card for each transaction, and each of said debit cards including means for storing a unique identification number, and said debit cards being dispensed only after a first predetermined number of conditions have been met and said validation signal is received from said point of sale assembly; and

C) a remotely located computerized clearing house assembly, including second computer means with associated second storage means, second input and output means for receiving and sending said block of information from and to said point of sale assembly and said second storage means further including data and instructions to process said block of information so that a line of credit is entered for each of said identification numbers.

(’182 Patent, col. 3, lines 33^15; col. 4, lines 1-19) (emphasis added).

Claims 2 to 7 of the T82 Patent are dependent, either directly or indirectly, on Claim 1, and read as follows:

2. The system set forth in claim 1, wherein the instructions and data in said second storage means permit a user to link more than one of said identification numbers of said debit cards to one line of credit thereby permitting more than one users [sic] to simultaneously access said credit line.

3. The system set forth in claim 2 wherein the instructions and data in said second storage means permit an issuer to affect the line of credit of the users upon the occurrence of a second number of predetermined conditions.

4. The system set forth in claim 3 wherein said second number of predetermined conditions includes the passage of time with unused balances.

5. The system set forth in claim 4 wherein the users can send and receive funds through the use of linked debit cards over a network of remotely distributed point of sale assemblies.

6. The system set forth in claim 5 wherein said line of credit is calculated by an issuer in one or more preselected foreign currencies.

7. The system set forth in claim 6 wherein a predetermined number of incentives are added to said line of credit, selectively, upon the occurrence of said second number of predetermined conditions.

(Id. at col. 4, lines 21-43).

The pertinent portions of the “Detailed Description of the Preferred Embodiment” with respect to the preceding limitations in Claim 1 are as follows:

The merchant or dispenser of the card issuer 41 .... Computerized clearing house 56 and a telecommunications network 60 connecting them. For the purpose of this application, a purchaser 30 will be deemed a debit or credit card purchaser or holder. Dispenser will [sic] the merchant or the entity or place selling the card, and an issuer will be the entity or financial institution issuiny the card. Dispenser 40 is loaded with three or more stacks of debit cards with a digital storage number 46 wherein a unique identifying serial number has been recorded....

As shown in FIG. 1, a card purchaser 30 initiates the process when approaching a merchant offering the sale of prepaid debit cards through the Poini^of-Sale terminals, requesting information regarding the different prepaid amounts of cards are available, once the purchaser decides the prepaid amount desired in the debit card to be purchased, depending on the jurisdiction’s regulations, it may be obviated (bearer debit card) or it may be required the disclosure of the name, address, and the social security number [sic]. The purchaser 30 (or card holder) validates the funds in the card for further future use, through the input, of the always required to enter confidential four digits [sic] number or number and letters combined, the PIN (personal identification number), and his/her mother’s maiden name 44, this last one for security purposes only (for replacement if the card is stolen or lost). The issuer 41 of the card determines the amount of information it will require, or make optional, leaving latitude and flexibility for the purchaser as to how much information wants to disclose [sic]. The more information he or she discloses the more secure the debit card will be.

^ sji & :K # #

The particulars of the user and the transaction, as well as the serial numbers) being dispensed, will be assembled in the predetermined manner and forwarded through network 60 clearing house 56, and through the existing facilities provided by the point-of-sale terminals.

(Id. at col. 2, lines 25-57; col. 3, lines 21-26)(emphasis added). The preferred embodiment provides further details regarding the processing of transactions by stating that:

The following step pertains to entering information about the transaction such as the amount to be deposited and method of payment (cash, from a bank card). If the transaction is cash the merchant collects the cash as if it is a merchandise or paying for services routine transaction but entering the being purchased [sic] debit card issuing bank’s ID number, right after the purchaser obtains the “virgin” not validated debit card for the amount he or she has prepaid minus a small processing % fee. A net prepaid amount is credited, and the debit card is slid into 54(POS) this time as a credit charge of the net prepaid amount.

(Id. at col. 2, lines 65-67, col. 3, lines 1-8).

B. The Prosecution History of the ’182 Patent (including the ’009 Patent)

The ’496 Application is a “continuation-in-part” of an earlier-filed application, serial number 09/128,088, which was filed on August 3, 1998 (the “ ’088 Application”) and which issued as the ’009 Patent on August 15, 2000. Claim 1 of the ’009 Patent discloses:

1. An automated machine for dispensing debit cards, comprising:

A)an automated teller machine assembly including first computer means with associated first storage means that further include input and output means ..., said first input means includes a keypad assembly, a bill acceptance port and a credit/debit card charge assembly and further including means for validating the funds made available through said input means so that a line of credit is computed by said first computer means and stored in said first storage means with a validation signal and a block of information is assembled and ready for transmission;

B) means for dispensing at least one debit card for each transaction, and each of said debit cards including means for storing a unique identification number, and said debit cards being dispensed only after a first predetermined number of conditions have been met and said validation signal is received from said automated teller machine; and

C) a remotely located computerized clearing house assembly, including second computer means with associated second storage means, second input and output means for receiving and sending said block of information from and to said automated teller machine and said second storage means further including data and instructions to process said block of information so that a line of credit is entered for each of said identification numbers.

(’009 Patent, col. 3, lines 30-46; col. 4, 1-15) (emphasis added).

The Abstract of the ’009 Patent discloses “[a]n automatic machine for dispensing debit cards that includes an automated teller machine (ATM) with input and output capabilities and a dispenser for debit cards .... ” (emphasis added). The preferred embodiment discloses the details regarding a particular transaction that is one of the preferred embodiments of the invention. Figure 1 “represents a block diagram of the system hardware used in one of the preferred embodiments,” and Figure 2 “represents an algorithm for the steps required to dispense a debit card.” (Id. at col. 1, lines 65-68; col. 2, lines 1-2) (emphasis added). In the “Detailed Description of the Preferred Embodiment,” the ’009 Patent discloses:

Referring now to the drawings, where the present invention is generally referred to with numeral 10, it can be observed that it basically includes a system for dispensing and controlling debit cards and it includes basically debit card dispenser 20, automatic teller machine (ATM) assembly 30 computerized clearing 60 and a telecommunications network 80 connecting them. For the purposes of this application, a user will be deemed a debit card purchaser or holder. An issuer will be the entity issuing the debit cards. Dispenser 20 is loaded with a stack 21 of debit cards 22 with a digital storage member 24 wherein a unique identifying serial number has been recorded. Dispenser 20 includes an ATM assembly 30 with the necessary input and output hardware, such as keypad 32, bill acceptance assembly 34, card charge assembly 35, display 36, printer assembly 38, computer assembly 40 and associated storage assembly 42....

The next step pertains to entering information about the transaction such as the amount to be deposited/withdrawn and method of payment (cash, debit or credit card). If the transaction is a deposit, the bills are validated or the debit/credit cards verified in a conventional manner by electronically contacting clearinghouse 40 which in turn connects with the eredit/debit card issuer (not shown) in a conventional manner.

(’009 Patent, col. 2, lines 5-49)(emphasis added). Figures 1 and 2 of the ’009 Patent are shown below.

The ’496 Application which issued as the ’182 Patent was originally filed with claims 1 to 7 from the earlier-issued ’009 Patent. On May 23, 2001, the patent examiner rejected claims 8-14 of the ’496 application based on “double patenting” pursuant to 35 U.S.C. § 101. The patent examiner stated the following as the basis for the initial rejection:

Claims 8-14 are rejected under 35 U.S.C. [§ ] 101 as claiming the same invention as that of claims 1-8 of prior U.S. Patent No. 6,105,009. This is a double patenting rejection.

The only difference between the claims of the instant application and aforementioned Patent is the terminology used. Specifically, in the Patent in claiml, item A, the terminology used therein is an “automated teller machine”, [sic] whereas in claim 8 of the instant application is “a point-of-sale assembly”. [sic] These recitations appear to describe the same device.

It is noted that if it can be demonstrated that the terminology used in the instant application is of different scope than that of 6,105,009, then the following rejection applies.

Claims 8-14 are rejected under the judicially created doctrine of obviousness-type double patenting as being unpatentable over claims 1-8 of U.S. Patent No. 6,105,009. Although the conflicting claims are not identical, they are not patentably distinct from each other because the claims only differ in scope.

(Thomas A. Gafford (“Gafford”) Deck, Ex. 4, at 45-46).

Mr. Cuervo’s attorney filed a “Preliminary Amendment” to the ’496 Application on August 24, 2000. In the remarks accompanying Mr. Cuervo’s Preliminary Amendment to the ’496 Application, the attorney states:

Applicant filed this application pro se. The enclosed proposed claims are similar in language and scope to the claim originally filed. The preamble has been changed to clearly indicate that the system claimed is an apparatus. Other minor changes have been introduced to comply with accepted claim drafting practices. The original figure I has been broken down in two figures to separate the hardware from the steps involved in using it.

The specifications were amended to bring them more in line with the claimed subject matter which basically extends those claims of the allowed parent application to include the use of a point-of-sale assembly (POS) instead of an automatic teller machine (ATM).

(Kevin M. Flowers (“Flowers”) Decl., Ex. 4, p. 33)(emphasis added).

In response to the patent examiner’s initial rejection for double patenting, Mr. Cuervo filed another amendment by adding a terminal disclaimer to the ’496 Application by which he disclaimed the portion of the term of any patent resulting from the ’496 Application that would extend beyond the expiration date of the ’009 Patent. (Flowers Decl. Ex. 7 (182 Patent Prosecution History, Paper No. 10)). The remarks accompanying Mr. Cuervo’s terminal disclaimer clarified the scope of his invention as follows:

The Examiner has stated that an automated teller machine is equivalent to a point-of-sale assembly. Applicant disagrees.

An automated teller machine dispenses money through its mechanism in response to a validated transaction. A point-of-sale assembly does not include such a mechanism. Applicant encloses print outs of commercially available P.O.S. products (Items 1 and 2) and commercial available ATM’s (Item 3 and 4).

The Examiner has included several references in form PTO-872. These patents disclose change dispensers. They provide change to cash purchases. However, they are different than [sic] ATM. But even if they were, for the purposes of this application, the structure is different and the claims have different scope.

It is clear that a merchant operates, in the present invention, a P.O.S. assembly to validate a transaction prior to dispensing a card. To that extent, the present claims are broader.

(Gafford Deck, Ex. 4,at 52) (emphasis added).

In the remarks accompanying the Notice of Allowability, the patent examiner commented on the allowable subject matter of the ’496 application. The examiner stated as follows:

Claims 8-14 are allowed.

The following is an examiner’s statement of reasons for allowance: the prior art fails to teach or suggest the invention defined in claims 8-14 of the instant application. In particular, the closest prior art to Muehlberger et al. and Peters fails to teach means for storing a unique identification number on each debit card and a remotely located clearing house assembly for receiving and sending the block of information to and from the point of sale assembly, and wherein the clearing house assembly having a second storage means which includes data and instructions to process the block of information so that a line of credit is entered for each of the identification numbers.

(Gafford Deck, Ex. 4, at 88).

The final document that is relevant to the claim construction and invalidity analysis is the patent issued to Karl Muehlberger on December 9, 1997, Patent No, 5,696,908, for a “telephone debit card dispenser and method” (the “Muehlberger Patent”). As already mentioned, Mr. Cuervo cited the Muehlberger Patent as the “closest reference” in the ’182 Patent. The Abstract of the Muehlberger Patent states that, in using the invention, “[p]repaid cards and printed cards are dispensed,” or “[o]ptionally, printed receipts are dispensed including an access code and prepaid value.” The specification discloses throughout an “apparatus for dispensing a card for use in debit purchasing from a vendor ....,” and calls for “electro-me-chanical dispensing” of each card, (emphasis added). It is specifically stated that the apparatus comprises a “printer.” The apparatus also contains “a means for storing the cards from the group consisting of discrete stacked cards and a continuously [sic] roll of separable cards.... ”

The specification also refers to a “dispenser operator,” which “may be a convenience store operator or any retail distribution center.” However, the “dispenser operator” does not actually dispense the debit cards, but rather is only involved in selecting the options of telephone service carriers and possible values of the telephone debit cards from which the debit card purchaser can choose. The “dispensing” occurs in a “dispenser port,” which is output from a “dispenser module,” and which constitutes the “dispensing” hardware. The inventor further described the components of the system that perform the “dispensing” function as follows:

The control and connections to a single dispenser module 11 or multiple dispenser modules 11, 11a, as illustrated with reference to FIG. 7, are performed by the interface and control board 80 through a marshalling and distribution board 86. Each card dispenser module 11 or 11a has an associated bar code sensor 84, 84a, and paper and card storage 85, 85a also interfacing with the interfacing control board 80 through the marshalling and distribution board 86. As illustrated with reference to FIG. 7 and as earlier described, it is anticipated that multiple dispenser modules 11 and bar code sensors 84 are located within a single dispenser apparatus 10.

(emphasis added).

III. DEFENDANTS’ MOTIONS AND THE STANDARD OF REVIEW

Home Depot has filed a Motion for an Order Construing Claim 1 of the ’182 Patent, a Motion for Summary Judgment finding that the Claims of the ’182 Patent are Invalid, and a Motion for Summary Judgment finding that its GifMJard Program does not Infringe any Claim of the ’182 Patent. Home Depot has requested that the Court construe only three limitations contained in Claim 1:(1) “means for validating the funds,” (2) “means for dispensing,” and (3) “bill acceptance port.” Starbucks and Wal-Mart joined in Home Depot’s Motions relating to claim construction and invalidity, filed memoranda in support of these Motions, which the Court indicated it would accept and consider, and filed their own Motion for Summary Judgment of Non-Infringement. Starbucks and Wal-Mart request that the Court adopt Home Depot’s proposed claim construction with respect to “means for validating” and three other related Claim 1 terms pertaining to validating and computing a line of credit. As to all other claim elements raised in connection with claim construction, Starbucks and Wal-Mart join in the positions set forth by Home Depot in its moving and reply claim construction briefs. Accordingly, Starbucks and Wal-Mart request that the Court adopt Home Depot’s proposed constructions of Claim 1 as well as Home Depot’s stated reasons for finding the ’182 Patent invalid.

In this Order, the Court only addresses the issues of claim construction and invalidity with respect to one of the disputed claim limitations of Claim 1 — “means for dispensing.” Because the Court finds that this means-plus-function claim limitation is indefinite, which makes Claim 1 invalid for indefiniteness pursuant to 35 U.S.C. § 112, ¶2, the Court does not reach claim construction of the other disputed claim limitations of Claim 1 or the issue of infringement of Claim 1.

Under Rule 56(c), Fed.R.Civ.P., a motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The Supreme Court explained the movant’s burden in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) as follows:

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.

Id. at 322, 106 S.Ct. 2548. The Court further stated that “Rule 56(c) therefore requires a non-moving party to go beyond the pleadings and by [its] own affidavits or by the ‘depositions, answers to interrogatories, and admissions on file’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548.

By its very terms, this standard provides that the mere existence of “some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there will be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An issue is “material” if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Allen v. Tyson Foods, 121 F.3d 642, 646 (11th Cir.1997). An issue is “genuine” if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. Allen, 121 F.3d at 646. On a motion for summary judgment, the court must view all the evidence and all factual inferences drawn therefrom in the light most favorable to the non-moving party, and determine whether that evidence could reasonably sustain a jury verdict. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Allen, 121 F.3d at 646.

While the burden on the movant is great, the non-moving party has a duty to present affirmative evidence in order to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. A mere “scintilla” of evidence in favor of the non-moving party, or evidence that is “merely colorable” or “not significantly probative,” is not enough. Id.; see also Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir.1996) (conclusory allegations and conjecture cannot be the basis for denying summary judgment). Moreover, otherwise admissible evidence may be submitted in inadmissible form at the summary judgment stage. See McMillian v. Johnson, 88 F.3d 1573, 1584-85 (11th Cir.1996); Gaston v. Home Depot USA, Inc., 129 F.Supp.2d 1355, 1361 (S.D.Fla.2001)

IV. ANALYSIS

A. Claim Construction of the Disputed Limitations of Claim 1

1. The Analytical Framework

a. The General Framework

In construing patent claims, the trial court must discern the ordinary and customary meanings attributed to the words used. Standard dictionaries of the English language may help identify the ordinary meaning of a claim term. Teleflex, Inc. v. Ficosa North America Corp., 299 F.3d 1313, 1325 (Fed.Cir.2002); Inverness Medical Switzerland GmbH v. Princeton Biomeditech Corp., 309 F.3d 1365, 1369 (Fed.Cir.2002); Optical Disc Corp. v. Del Mar Avionics, 208 F.3d 1324, 1334-35 (Fed.Cir.2000). Once the court has determined the ordinary and customary meaning of the terms, there is a heavy presumption that those definitions are the proper meanings. Texas Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1202 (Fed.Cir.2002) (“The terms used in the claims bear a ‘heavy presumption’ that they mean what they say and have the ordinary meaning that would be attributed to those words by persons skilled in the relevant art.”). Thus, patent infringement analysis begins and must remain focused upon the words of the patent claims themselves to determine the ordinary and customary meanings of those terms, but “unless compelled otherwise, a court will give a claim term the full range of its ordinary meaning as understood by persons skilled in the relevant art.” Id.

The presumption that words have their ordinary meanings when used in a patent claim is rebutted, however, where the patentee, acting as his own or her own “lexicographer,” has clearly set forth a definition of a claim term that is different from the term’s ordinary and customary meaning. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996) (“Although words in a claim are generally to be given their ordinary and customary meaning, a patentee may choose to be his own lexicographer and use terms in a manner other than their ordinary meaning, as long as the special definition of the term is clearly stated in the patent specification or file history.”) (citing Hoechst Celanese Corp. v. BP Chemicals, Ltd., 78 F.3d 1575, 1578 (Fed.Cir.1996)) (“A technical term used in a patent document is interpreted as having the meaning that it would be given by persons experienced in the field of invention, unless it is apparent from the patent and the prosecution history that the inventor used the term with a different meaning.”). The presumption is also rebutted if the inventor has disavowed or disclaimed a scope of coverage by using words or “expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope.” Teleflex, 299 F.3d at 1324, 1325 (“The patentee may demonstrate an intent to deviate from the ordinary and accustomed meaning of a claim term by including in the specification expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope.”). Finally, where the term or terms chosen by the patentee so deprive the claim of clarity that there is “ ‘no means by which the scope of the claim may be ascertained from the language used,”’ the presumption is rebutted. Bell Atlantic Network Servs., Inc. v. Covad Communciations Group, Inc., 262 F.3d 1258, 1268 (Fed.Cir.2001) (citing Johnson v. Worldwide Assoc. Inc. v. Zebco Corp., 175 F.3d 985, 989 (Fed.Cir.1999)). “Where ... the patentee has clearly defined a claim term, that definition is ‘[ujsually dispositive.’ ” Jack Guttman, Inc. v. Kopykake Enters., Inc., 302 F.3d 1352, 1360 (Fed.Cir.2002).

After the court has determined the ordinary and customary meanings of the terms at issue, it may then look to the rest of the intrinsic evidence, including the patent specification and file history. Teleflex, Inc. v. Ficosa North America Corp., 299 F.3d 1313, 1324-26 (Fed.Cir.2002). The Federal Circuit has explained that, in examining the file history, the court may examine the prior art cited therein:

In addition, a court in its discretion may admit and rely on prior art proffered by one of the parties, whether or not cited in the specification or the file history. This prior art can often help to demonstrate how a disputed term is used by those skilled in the art. Such art may make it unnecessary to rely on expert testimony and may save much trial time. As compared to expert testimony, which often only indicates what a particular expert believes a term means, prior art references may also be more indicative of what all those skilled in the art generally believe a certain term means. Once again, however, reliance on such evidence is unnecessary, and indeed improper, when the disputed terms can be understood from a careful reading of the public record.

Vitronics, 90 F.3d at 1584.

An analysis of the intrinsic record is particularly important because words often have multiple dictionary meanings. The intrinsic record must always be consulted to identify which of the different possible dictionary meanings of the claim terms in issue is “most consistent with the use of the words by the inventor.” Texas Digital, 308 F.3d at 1203-04 (“ ‘The construction that stays true to the claim language and most naturally aligns with the patent’s description of the invention will be, in the end, the correct construction.’ ”) (citing Dow Chemical Co. v. Sumitomo Chem. Co., 257 F.3d 1364, 1372-73 (Fed.Cir.2001); Reinshaw PLC v. Marposs Societa per Azioni, 158 F.3d 1243, 1250 (Fed.Cir.1998)); Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1300 (Fed.Cir.2003) (“[TJhe general meanings gleaned from reference sources, such as dictionaries, must always be compared against the use of the terms in context.... ‘Where there are several common meanings for a claim term, the patent disclosure serves to point away from the improper meanings and toward the proper meanings.’ ”) (citations omitted).

Moreover, among the intrinsic evidence, “the specification is always highly relevant to the claim construction analysis.” Vitronics, 90 F.3d at 1582; Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed.Cir.1995) (Dictionary definitions are a useful first step, but “[cjlaims must be read in view of the specification, of which they are a part.”); Bell Atlantic Network Servs. v. Covad Communications Group, Inc., 262 F.3d 1258, 1267 (Fed.Cir.2001) (The intrinsic evidence, i.e., the surrounding claim language, the patent specification and the file history — provide “ ‘the most significant source of the legally operative meaning of disputed claim language.’ ”) (quoting Vitronics, 90 F.3d at 1582).

Claims should be construed to encompass all definitions that are consistent with the use of the word in the intrinsic record, except those that have been disclaimed. BrookhillAWilk, 334 F.3d at 1299 (“If more than one dictionary definition is consistent with the use of the words in the intrinsic record, the claim may be construed to encompass all consistent meanings.”); see also Texas Digital, 308 F.3d at 1203 (same). Identical terms appearing in the same or related patents should be construed identically. See, e.g., Process Control Corp. v. Hydreclaim Corp., 190 F.3d 1350, 1356 (Fed.Cir.1999).

Now, “[i]n most situations, an analysis of the intrinsic evidence alone will resolve any ambiguity in a disputed claim term. In such circumstances, it is improper to rely on extrinsic evidence.” Vitronics, 90 F.3d at 1583 (citations omitted). See also Brookhill-Wilk, 334 F.3d at 1304 (quoting Vitronics, 90 F.3d at 1582) (“I[f] an analysis of the intrinsic evidence alone will resolve any ambiguity in a disputed claim term, ... it is improper to rely on extrinsic evidence.”). The Federal Circuit has consistently emphasized that “extrinsic evidence,” i.e., anything outside of the intrinsic evidence — may not be used in claim construction to vary the meaning of claim terms as reflected in the intrinsic record. Vitronics, 90 F.3d at 1583. In particular, “[ejxpert testimony ... may not [be used to] ... diverge from the description of the invention as contained in the patent documents.” Aqua-Aerobic Sys., Inc. v. Aerators, Inc., 211 F.3d 1241, 1245 (Fed.Cir.2000). Although the court may rely on the evidence from experts “to educate itself about the patent and the relevant technology, the claims and the written description remain the primary and more authoritative sources of claim construction.” Mantech Envtl. Cor. v. Hudson Envtl. Servs., Inc., 152 F.3d 1368, 1373 (Fed.Cir.1998).

Whether or not an ambiguity exists, a court may consider extrinsic evidence, such as expert testimony, as to how those skilled in the art would interpret the claims. The construing court may consider opinions and advice of experts to explain the meaning of terms as they are used in patents and as they would be perceived and understood in the pertinent field of invention. See Merck & Co., Inc. v. Teva Pharmaceuticals USA Inc., 347 F.3d 1367 (Fed.Cir.2003). For example, to construe the meaning of a patent term, a court must consider what was known to one of ordinary skill in the relevant art at the time of filing, in addition to the claims themselves, the specification, the prosecution history, and dictionaries and treatises. See Teleflex, Inc. v. Ficosa North America Corp., 299 F.3d 1313 (Fed.Cir.2002); Bayer AG. v. Biovail Corp., 279 F.3d 1340 (Fed.Cir.2002). However, regardless of how those skilled in the art would interpret a patent term in other situations, the court must give it the meaning indicated by the patentee in the patent claim, specification and file history. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576 (Fed.Cir.1996); see also Goldenberg v. Cytogen, Inc., 373 F.3d 1158 (Fed.Cir.2004) (although expert testimony and declarations are useful to confirm that construed meaning of patent term is consistent with denotation ascribed by those in field of art, such extrinsic evidence cannot be used to vary plain language of patent document).

Statements made by the applicant during the patent prosecution “regarding the meaning of a claim term are [also] relevant to the interpretation of that term in every claim of the patent absent a clear indication to the contrary.” CVI/Beta Ventures v. Tura LP, 112 F.3d 1146, 1155 (Fed.Cir.1997); Southwall, 54 F.3d at 1578. See also Laitram Corp. v. Morehouse Industries, Inc., 143 F.3d 1456, 1462 (Fed.Cir.1998) (arguments made by the applicant during prosecution, whether or not actually relied upon by the PTO examiner, are relevant to the construction of claim terms).

b. Interpreting Means-Plus-Function Claim Limitations

Additional claim construction rules apply to mean-plus-function elements. British Telecomm. PLC v. Prodigy Comms. Corp., 189 F.Supp.2d 101, 108 (S.D.N.Y.2002). Instead of identifying a specific structure contained in a patented device, a patentee may claim a means for performing a specified function without expressly claiming a structure for performing that function. 35 U.S.C. § 112, ¶ 6. See also Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, 1307 (Fed.Cir.1998) (“A means-plus-function limitation contemplated by 35 U.S.C. § 112, ¶ 6 recites a function to be performed rather than definite structure or materials for performing that function.”). In such a case, the claim shall be construed to cover the structure described in the specification for performing the claimed function and any equivalent structures. Id. Specifically, paragraph 6 provides that “[a]n element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure ... in support thereof, and such claim shall be construed to cover the corresponding structure ... described in the specification and equivalents thereof.” Moreover, under 35 U.S.C. § 112, ¶ 2, a patent specification must “conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.”

A determination of the claimed function and the corresponding structure is a matter of claim construction. Chiumi-natta, 145 F.3d at 1308. When construing a means-plus-function claim element, the court must first identify the particularly claimed function using traditional tools of claim construction. Med. Instrumentation & Diagnostics Corp. v. Elekta AB, 344 F.3d 1205, 1210 (Fed.Cir.2003); Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1330 (Fed.Cir.2003). Applying Section 112, ¶ 6, to this first step, “[t]he statute does not permit limitation of a means-plus-function claim by adopting a function different from that explicitly recited in the claim.” Micro Chem., Inc. v. Great Plains Chem. Co., Inc., 194 F.3d 1250, 1258 (Fed.Cir.1999).

The next step requires the court “to look to the specification and identify the corresponding structure for that function.” id. A means plus function claim limitation “shall be construed to cover the corresponding structure, material, or acts described in the specification” for performing the specified function, “and equivalents thereof.” 35 U.S.C. § 112, ¶ 6. See Altiris, Inc. v. Symantec Corp., 318 F.3d 1363, 1375 (Fed.Cir.2003). However, a “ ‘structure disclosed in the specification is a “corresponding” structure only if the specification or prosecution history clearly links or associates that structure to the function recited in the claim.’ ” Id. (quoting B. Braun Med. Inc. v. Abbott Labs., 124 F.3d 1419, 1424 (Fed.Cir.1997)). See also Medtronic, Inc. v. Advanced Cardiovascular, 248 F.3d 1303, 1310-13 (Fed.Cir.2001); Personalized Media v. Int’l Trade Comm’n, 161 F.3d 696, 705 (Fed.Cir.1998). “The duty of a patentee to clearly link or associate structure with'the claimed function is the quid pro quo for allowing the patentee to express the claim in terms of function under section 12, paragraph 6.” Elekta AB, 344 F.3d at 1211 (citing Budde v. Harley-Davidson, Inc., 250 F.3d 1369, 1377 (Fed.Cir.2001)).

Moreover, the structure must be capable of performing the claimed function. Cardiac Pacemakers, Inc. v. St. Jude Med. Inc., 296 F.3d 1106, 1114 (Fed.Cir.2002); see also Omega Eng’g, 334 F.3d at 1321 (“the structure must be necessary to perform the claimed function”). “[T]he statute does not permit incorporation of structure from the written description beyond that necessary to perform the claimed function.” Micro Chem., 194 F.3d at 1258. See Wenger Mfg., Inc. v. Coating Machinery Systems, Inc., 239 F.3d 1225 (Fed.Cir.2001) (under statutory means-plus-function provision, a court may not import functional limitations that are not recited in the patent claim, or structural limitations or aspects from the written description that are unnecessary to perform the claimed function). A claim is valid even if only one embodiment discloses corresponding structure. Cardiac Pacemakers, 296 F.3d at 1113. However, if the court’s inquiry “reveals that no embodiment discloses corresponding structure, the claim is invalid for failure to satisfy the definiteness requirement of § 112, ¶ 2.” Id. at 1114 (citing Budde, 250 F.3d at 1376). See also Signtech USA, Ltd. v. Vutek, Inc., 174 F.3d 1352 (Fed.Cir.1999) (although patentees are not necessarily limited to their preferred embodiment, interpretation of a means-plus-function element requires the court to consult the structure disclosed in the specification, which often describes little more than the preferred embodiment). While courts must construe claims to preserve their validity, this may not be possible when the specification fails to disclose structure corresponding to the claimed function. Cardiac Pacemakers, 296 F.3d at 1114.

The court’s inquiry is “undertaken from the perspective of a person of ordinary skill in the art.” Id. It is important, however, for the court to determine “whether one of skill in the art would understand the specification itself to disclose the structure, not simply whether that person would be capable of implementing that structure.” Elekta AB, 344 F.3d at 1212. There must be such a specific structure disclosed in the specification. Ishida Co. v. Taylor, 221 F.3d 1310 (Fed.Cir.2000). If the specification does not adequately disclose a particular structure as the structure that performs the recited function, then the claim limitation is indefinite, the claim does not “particularly point out and distinctly claim” the invention, and the claim is consequently invalid under 35 U.S.C. § 112, ¶ 2. For example,

[although paragraph six statutorily provides that one may use means-plus-function language in a claim, one is still subject to the requirement that a claim “particularly point out and distinctly claim” the invention. Therefore, if one employs means-plus-function language in a claim, one must set forth in the specification an adequate disclosure showing what is meant by that language. If an applicant fails to set forth an adequate disclosure, the applicant has in effect failed to particularly point out and distinctly claim the invention as required by the second paragraph of section 112.

In re Donaldson Co., 16 F.3d 1189, 1195 (Fed.Cir.1994) (en banc); see also B. Braun Med., Inc. v. Abbott Labs., 124 F.3d 1419 (Fed.Cir.1997).

In construing a “means plus function” claim, a number of factors may be considered, including the language of the claim, patent specification, the prosecution history of the patent, other claims in the patent, and expert testimony. In re Hayes Microcomputer Products, Inc. Patent Litigation, 982 F.2d 1527 (Fed.Cir.1992); Durango Associates, Inc. v. Reflange, Inc., 843 F.2d 1349 (Fed.Cir.1988); Palumbo v. Don-Joy Co., 762 F.2d 969 (Fed.Cir.1985). Statements made during the prosecution relating to structures disclosed in the specification are also relevant to determining the meaning of means-plus-function limitations of claims. Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206 (Fed.Cir.1998). Prior art patents may also be considered. See, e.g., Alpex Computer Corp. v. Nintendo Co., Ltd., 102 F.3d 1214 (Fed.Cir.1996) (prior art patent which patent applicant distinguished during prosecution of patent for microprocessor-based home video game system as to particular means-plus-function claims of patent, was also relevant to construction of other means-plus-function claims of patent, as all claims at issue related to same structure of same display system); RCA Corp. v. Applied Digital Data Systems, Inc., 730 F.2d 1440 (Fed.Cir.1984) (as regards element of a claimed invention expressed in terms of a “means-plus-function,” a prior art reference does not meet the claim absent a structure in the prior art reference which is capable of performing the functional limitation of the means); NCR Corp. v. Palm, Inc., 217 F.Supp.2d 491, 517 (D.Del.2002) (“[Prior] art structures should be construed as being corresponding structures where they are capable of performing the claimed function and described as corresponding structure in the specification.”).

Defendants maintain that the specification of the ’182 Patent fails to disclose a corresponding structure for the “means for validating” and “means for dispensing” limitations. Defendants seek summary judgment based on their contention that Claim 1 of the ’182 Patent is invalid for its noncompliance with 35 U.S.C. § 112. Addressing the invalidity issue is therefore intertwined with the steps the Court must take in construing the means-plus-function limitations, because the Court must identify the corresponding structure in her claim construction. See Atmel Corp. v. Info. Storage Devices, Inc., 198 F.3d 1374, 1379 (Fed.Cir.1999) (noting that analysis of whether there is sufficient disclosure of structure is “inextricably intertwined” with claim construction); Personalized Media v. Int’l Trade Comm’n, 161 F.3d 696, 705 (Fed.Cir.1998) (“A determination of claim indefiniteness is a legal conclusion that is drawn from the court’s performance of its duty as the construer of patent claims.”).

The parties agree that two of the disputed Claim 1 limitations — “means for dispensing” and “means for validating” — are written in “means-plus-function” format. However, the fact that both parties agree that a limitation is written in means-plus-function format does not relieve the Court of the responsibility to determine for herself that the element invokes 35 U.S.C. § 112, paragraphs 2 and 6. See Rodime PLC v. Seagate Tech., Inc., 174 F.3d 1294, 1302 (Fed.Cir.1999). In determining whether a claim element is a means-plus-function limitation, the Court applies a presumption that patentees using the word “means” intended to claim a means for performing a specified function without expressly claiming a structure for performing that function within the language of the claim itself. Id. This presumption is only overcome in two instances First, a claim that uses the word “means” but does not state any corresponding function is not a means-plus-function claim limitation. Second, a claim that uses the word “means” and states a corresponding function, but goes on to recite sufficient structure or material for performing that function is also not a means-plus-function claim limitation. Id.

Here, the “means for dispensing,” invokes the term “means,” states a corresponding function (“for dispensing”), and does not go on to explicitly recite any structure for doing so. This claim element is therefore a means-plus-function claim limitation and will be analyzed as such. As previously mentioned, the “means for dispensing” claim limitation is the only one addressed in this Order.

2. Consideration of Gafford’s Testimony

Defendants contend that Gafford’s Declaration should be stricken and not considered for several reasons. Defendants’ main contention is that the ordinary language of the specification provides the function of the means-plus-function claim limitations, fails to disclose any structure to perform the recited functions, and that Gafford’s testimony is not needed for claim construction. According to Defendants, no ambiguity exists in the language used in the specification that would require the consideration of extrinsic evidence.

Default Proof relies primarily on the testimony of Mr. Gafford for its contention that there is more than sufficient structure disclosed that corresponds to the “dispensing” within the meaning of Claim 1. Whether the patent specification discloses sufficient structure to support a means-plus-function function limitation should be determined from the perspective of one skilled in the art. Budde v. Harley-Davidson, Inc., 250 F.3d 1369, 1376 (Fed.Cir.2001); Atmel Corp. v. Information Storage Devices, Inc., 198 F.3d 1374, 1379 (Fed.Cir.1999). However, it is impermissible for a party to use expert declarations to rewrite the patent’s specification and to create links between a structure and the recited function where the specification provides none. See Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1332 (Fed.Cir.2003) (rejecting expert testimony when the patent specification did not link function with structure identified by expert). Indeed, courts have noted that “[i]t is not proper to look to the knowledge of one skilled in the art apart from and unconnected to the disclosure of the patent.” Medical Instrumentation & Diagnostics Corp. v. Elekta AB, 344 F.3d 1205, 1212 (Fed.Cir.2003). If the court considers extrinsic evidence, it does so to aid its construction of the claims and not for the purposes of resolving factual disputes. See Exxon Research & Eng’g Co. v. United States, 265 F.3d 1371, 1376 (Fed.Cir.2001) (rejecting plaintiffs argument that issue of indefiniteness turned on underlying factual dispute).

In Vitronics, evidence was admitted in the form of expert testimony regarding how those skilled in the relevant art used a disputed claim term. 90 F.3d at 1585. The Federal Circuit determined the trial judge erred in relying on this expert testimony because the testimony “var[ied] or contradicted the manifest meaning of the claims.” Id. In so finding, the Federal Circuit stated:

[Rjegardless of how those skilled in the art would interpret a term in other situations, where those of ordinary skill, on a reading of the patent documents, would conclude that the documents preclude the term being given the meaning propounded by the expert witnesses, we must give it the meaning indicated by the patentee in the patent claim, specification and file history.

Id. The Federal Circuit ultimately found that the specification clearly and unambiguously defined the claim term in dispute and so the trial judge’s reliance on the expert testimony was incorrect. Id.

Indeed, the court strongly noted that patent documents are rarely insufficient to aid the court in properly construing claims. Id. However, the Federal Circuit stated that even in those rare circumstances when the documents are insufficient:

[Pjrior art documents and dictionaries, although to a lesser extent, are more objective and reliable guides. Unlike expert testimony, these sources are accessible to the public in advance of litigation. They are to be preferred over opinion testimony, whether by an attorney or artisan in the field of technology to which the patent is directed. Indeed, opinion testimony on claim construction should be treated with the utmost caution, for it is no better than opinion testimony on the meaning of statutory terms.

Id. The Court examines statements made by Gafford consistent with the above principles.

The undersigned finds that the language of the “means for dispensing” claim limitation is ambiguous, not with respect to the recited function, but with respect to the corresponding structure(s) disclosed, as further explained below. Therefore, the Court has considered certain portions of Mr. Gafford’s testimony solely for the purpose of determining whether a corresponding structure is disclosed for the “means for dispensing” claim limitation. In particular, the Court considered Mr. Gafford’s statements in determining whether a person of ordinary skill in the relevant art would understand that a corresponding structure is disclosed in the specification. In the discussion infra, the Court examines the specific assertions contained within Gafford’s Declaration and determines whether or not, and how, they have aided the Court in construing the “means for dispensing” claim element. As indicated, where Gafford’s statements are either unsupported or contradicted by the express language of the written description, the undersigned has not relied on Gafford’s testimony.

3. “Means for Dispensing ”

The Court finds that the function associated with the “means for dispensing” claim limitation is distributing or dealing out debit cards to debit card purchasers. (See The New Shorter Oxford English Dictionary (Oxford), p. 698) (Gafford Deck, Ex. 5); The American Heritage Dictio nary of the English Language (3d ed. Houghton Mifflin 1996, at 586)(emphasis added). This is an ordinary meaning of “dispensing,” and the claims and specification of the 182 Patent do not define the term to have a different meaning. As set forth below, Default Proofs assertion that “the plain and ordinary meaning of the term ‘dispense’ is to ... ‘give out,’ ‘hand out,’ or ‘hand over’ ” (PI. Resp. to Home Depot’s Mot. for an Order Construing Claim 1 of U.S. Patent No. 6,405,182, at 15-16) is not supported by the intrinsic evidence.

The larger dispute is not over the function of “dispensing”, but over the “dispenser,” and particularly: (1) whether or not a corresponding structure is disclosed to perform the “dispensing” function, and (2) whether the structure that corresponds to the dispensing function must be an apparatus, i.e., a machine with component parts, or may include a person manually operating an apparatus. Defendants argue that the “means for dispensing” is a separate component from the “point of sale assembly” because Claim 1 recites these means separately and part B of the claims states that the debit cards are dispensed by the “means for dispensing” only after a “validation signal is received from said point-of-sale assembly.” Moreover, Defendants argue that there is no corresponding structure disclosed, but if a corresponding structure is identified with the “dispensing” function, it must be a machine and cannot be a person. In contrast, Default Proof argues that the “dispensing” function in Mr. Cuervo’s invention can be, and is performed either wholly automatically or it can include a “merchant” operating component parts of the POS terminal. Default Proofs position is that the “corresponding structures” for the “means for dispensing” include specific parts of the POS terminal, and need not be separate from the terminal.

The specification of the ’182 Patent also sheds little or no light on the meaning of “dispensing.” Although the ’182 Patent uses the terms “dispensing” and “dispensers” several times in the specification, it never provides an example of what act constitutes “dispensing,” what structure or de