This case is an appeal form the District Court’s ruling of non-infringement by appellees, American Express Co., Visa U.S.A., Inc., Green Dot Corp MasterCard International, Inc., First Data Corp., Valutec Card Solutions, LLC, Incomm Holdings, Inc. and Comdata Stored Value Solutions, Inc. Every Penny Counts, Inc. (EPC) appeals. EPC’s patent at issue concerns a method for donating excess cash to charities and saving accounts and an automatic donation system for contributing excess cash from retail sales transactions into predetermined charitable or savings accounts.

During the Markman hearing for claim construction in the District Court, the claim term at issue was “excess cash.” The appellees’ proposed interpretation was an “amount selected by the payor beyond the total amount due at the point of sale.” Whereas, EPC relied on a nontraditional meaning of sales price which was “an amount . . . offered in excess of the sale price of merchandise.” EPC’s proposed interpretation of “sales price” was the portion of a transaction that a merchant would account for as a sale. For instance, the “sale price” of a $50 gift card may be as low as $0, because according to EPC, the merchant does not typically account for transactions involving gift cards as “sales” until the gift card is redeemed. Based on this interpretation, EPC asserts that the claims were being infringed since the purchaser was using “excess cash” to buy the gift card.

In arriving at the decision to uphold the District Court, the Federal Circuit focused on the specification to determine the meaning of “excess cash”, as governed by Phillips v. AWH Corp. Phillips states that in determining the meaning of a term, the court should consider the “claim term in the claims, specification, and prosecution history.” After reviewing the specification, the Federal Circuit found that “excess cash” is what is left over after the merchant subtracts the price of the items the consumer wishes to buy from the cash the consumer tenders to complete the sale. This construction was consistent with the District Court’s adopted construction of “an amount selected by the payor beyond the total amount owed at the point of sale.” Based on this definition, the Federal Circuit found the defendant’s activity non-infringing.