Kraft v. Kellogg (CAFC 2017)

Transcription

1 Kraft v. Kellogg (CAFC 2017)

2 1912 Background: History of Cookie Packaging

3 Wet wipes have long been sold in soft container with resealable tops

4 2005

5 Source: Packworld, August 31, 2006,

6 2008

7 2010: Kellogg s introduces re-sealable packages for its competing cookies

8 Litigation Kraft brings patent infringement suit Kellogg s defends, relying primarily on an assertion that the patent is invalid for obviousness 2015: District Court grants defendant s motion for summary judgment Appeal to CAFC

9 The Patent

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13 What is claimed is: 1. A polygonal shaped food container comprising: a frame defining the polygonal shape of the container, said container having a top, a bottom and sides connecting the top and bottom, the frame containing a food product comprised of discrete food articles; a Wrapper surrounding said frame, said Wrapper forming the top sides and bottom of the container; said top having an access opening sufficiently large to provide hand access to substantially all of the discrete food articles contained within the frame, such that substantially any one of the discrete food articles can be accessed and removed individually through said access opening; and a sealing layer, adhesively sealed to said top around said opening, said sealing layer including a starter portion located near a side of the top which can be grasped by a user, said sealing layer being releasable when said starter portion is pulled in a direction away from said side to in turn pull and thereby release at least a portion of said sealing layer to provide the hand access to said top access opening and reclosable against said top to seal said opening when said sealing layer is moved back against the said top.

14 Prior Art Wet Wipes

15 Prior Art Frames used in protective Packaging for cookies

16 Prior Art 2001 article in Packaging News that displayed and described Re-Seal It packaging made by a Swedish firm and marketed by Paramount Packaging. two related articles in the Machinery Update publication describing and showing a Re-Seal It package marketed in Britain by Paramount Packaging as an agent for Real-Seal It Sweden. Machinery Update, September/October 2001 at Machinery Update, March/April 2002 at 59 60: The 2002 article describes the Re-Seal It system, which "allows flow-wraps of bacon, sliced cooked meat, cheese and similar food products that are consumed over a period of time to be opened, then reclosed to avoid drying out in the refrigerator. The system can also "be used for trays of high value prepared food such as sushi or canapés."

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18 PHOSITA The parties do not dispute the level of ordinary skill in the pertinent art. Kellogg's expert characterizes a person of ordinary skill in the art as someone with "at least a bachelor's degree in mechanical engineering or packaging design and several years of practical experience designing packages," or someone with "a degree in a related field such as chemistry or chemical engineering and significant practical experience designing packages." Defs.' Mem. in Supp. of Mot. for Summ. J. at 43. IGB's expert stated that defendants' description was not "substantially different from my own opinion regarding a person of ordinary skill in the art." Pl.'s Ex. 27 at

19 Secondary Factors With respect to commercial success, a Kraft study concluded that the company's sales volume increased four percent due to the Snack 'n Seal packaging.. IGB also presented evidence of positive consumer feedback related to the packaging. IGB has also presented evidence of long felt but unsolved need. Kraft won many awards for its Snack 'n Seal packaging, including a DuPont Award, "one of the highest industry awards innovative packaging technology can receive.. Additionally, many industry publications have lauded the Snack 'n Seal package, including one article that said, "The tray pack for Oreo cookies long cried for improvement. Additionally, IGB has presented compelling evidence of copying. A document produced by Kellogg states that the company "develop[ed] technology that circumvents the Kraft patent while maintaining similar properties." This evidence shows that Kellogg intentionally copied IGB's packaging.

20 notorious Accessibility Prior Art Packaging News (2001) Machinery Update (2001) Machinery Update (2002) 1-year grace period US Filing April 16, 2003 Grant July 19, 2005 time secret Technological Progress

21 CAFC (2/1) (September 2017), Taranto, J. [T]he [Supreme] Court [in KSR] required an analysis that reads the prior art in context, taking account of demands known to the design community, the background knowledge possessed by a person having ordinary skill in the art, and the inferences and creative steps that a person of ordinary skill in the art would employ. A court must ask whether the [claimed] improvement is more than the predictable use a predictable variation of prior art elements according to their established functions, considering whether more is involved than the simple substitution of one known element for another or the mere application of a known technique to a piece of prior art ready for the improvement. [I]f a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill. Applied: Tilts strongly toward finding of obviousness Affirm manner in which District Court considered the secondary factors and its conclusion that they were insufficient to overcome prima facie finding of obviousness