Joint Appendix One

Cas,
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2:10-cv-O7678-JFW-DTB Document 65-2 Filed 10/07/11 Page 4 of 6 Page ID
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humidity, customer abuse, and operator error. (Facts, 129-130.) It is well
settled that where testing is required to determine that an invention will work ill its
intended enviromnent, such testing (and prototype sales incident to such testing) do
not place an invention "on sale" or in "public use" within the meaning of Section
102(b). See Kolmes v. World Fibers Corp., 107 F.3d 1534 (Fed. Cir. 1997) (pre-
critical date testing of meat packing gloves in a meat packing plant was not public
use or on sale bar because "[a]n inherent feature of Kolmes' invention was
durability, the ability to withstand use in an environment such as a meat-packing
plant").
In addition, the evidence demonstrates that Coca-Cola was under an
obligation of confidentiality to FutureLogic. The "PSA-VM-66 Communications
Protocol," which describes how the prototype printer communicated with a machine
controller and promotional controller to perform its intended functions, was clearly
designated "CONFIDENTIAL and PROPRIETARY." (Facts, 1 67.) Coca-Cola's
engineer responsible for the project testified that information exchanged among
FutureLogic, Inc. and Coca-Cola was "treated as confidential by all parties" and
that he maintained FutureLogic's technical information as confidential "as did
others at The Coca-Cola Company." (Facts, 1 126.) In addition, both Mark and
Eric Meyerhofer have testified that they provided printers and information
regarding the printers to Coca-Col a subject to an understanding that such material
would be kept confidential. ( Facts, 11 127-128.) Interleave Systems, the third
party who introduced FutureLogic and Coca-Cola, considered itself subject to a
confidentiality agreement and treated FutureLogic's information as confidential.
(Facts, 11 63-65.) Lastly, a letter from Coca-Cola to FutureLogic proposed an
agreement that would have memorialized both parties' understanding that
information exchanged during the development project was to be kept confidential.
(Facts, 1 66.) This evidence of a confidentiality obligation between Coca-Cola and
FutureLogic is sufficient to withstand Nanoptix's motion for summary judgment.
-A0426-
FUTURELOGIC'S PROPOSED STATEMENT OF
- 4 - DECISION
CV 104)7678-JFW (I)TBX)
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