Joint Appendix One

Case 2:10-cv-07678-JFW -DTB
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Document 65
#:1271
Filed 10/07/11 Page20of26 Page ID
express] confidentiality agreement is not determinative of the public use issue").
In this case, not only have both Coca-Cola and FutureLogic witnesses
testified that FutureLogic's technical information was treated as confidential,
FutureLogic produced an important technical specification containing a
confidentiality provision and a proposed letter agreement from Coca-Cola
containing a confidentiality provision. The evidence that Coca-Cola was obligated
to keep, and did keep, information regarding FutureLogic's patented printers
confidential is vastly more compelling than the evidence found sufficient to
withstand summary judgment in Armco. See id Notably, there is no evidence that
any information of a confidential nature concerning FutureLogic's invention was
communicated to any member of the public. See Allied Colloids Inc., 64 F.3d at
1576 ("the absence of [a v_itten promise of confidentiality] does not make a use
'public' ... or outweigh the undisputed fact that no information of a confidential
nature was communicated to others").
Second, information of a confidential nature concerning the operation of
FutureLogic's prototype printers was never accessible to the public at any time
during flae field trials, lit is undisputed that the prototype printers, when installed in
vending machines for field trials in Cincinnati, were located in a locked
compartment inaccessible even to the route operators tasked with refilling sodas in
the machines. (Facts, 96.) No Coca-Cola customer or other member of the
public could have observed the operation of the printer or determine how it
communicated with either a machine controller or a promotional controller. (Id.)
FutureLogic's coupon template system and communication protocol, both of which
are important aspects of the '855 Patent invention, could not have been discovered
by any member of the public or even a Coca-Cola technician. (Id.) In these
circumstances, the on sale and public use bars do not apply. See In re Mahurkar,
71 F.3d at 1577 (transaction was not a "102(b) sale" because it "did not place the
invention in the public domain").
-A0380-
OPPOSITION TO 13EFENI)ANT'S MOTION FOR
16 SUMMARYJUDGMENT
CV 10-07678-JFW (DTBX)
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