Fed Circuit partially reverses PTAB in win for Campbell Soup
A split Federal Circuit yesterday, September 26, handed a victory to Campbell Soup after ruling that the US Patent and Trademark Office (USPTO) was wrong to discount prior art which could invalidate a soup can dispenser patent owned by Gamon International.
In the ruling, issued yesterday, September 26, the US Court of Appeals for the Federal Circuit ruled that the USPTO’s Patent and Trial Appeal Board (PTAB) had incorrectly judged that a 1997 design patent was not a primary reference for Gamon’s patents.
According to the Federal Circuit, a primary reference is one which gives “basically the same” visual impression as the claimed design in question.
Campbell petitioned for inter partes review of two Gamon design patents, covering a “gravity feed” can dispenser (US numbers D612,646 and D621,645).
The soup manufacturer argued that Gamon’s patents are obvious in light of two supposed primary references - US patent D405,622 (“Linz”) and UK patent application 2,303,624 (“Samways”).
Campbell failed to convince the PTAB, however, which ruled that neither of the cited patents were similar enough to Gamon’s claimed designs to constitute a primary reference.
In yesterday’s ruling, the Federal Circuit upheld the PTAB’s ruling that Samways did not constitute a primary reference, but found that the board had erred in respect of its findings on Linz.
According to the court, the “ever-so-slight” differences in design between Linz and Gamon’s designs do not outweigh the overall similarities.
“This case presents the unusual situation where we reverse the Board’s factual finding that Linz is not a proper primary reference for lack of substantial evidence support,” the judgment said.
The court rejected Campbell’s argument that the PTAB had incorrectly ruled that Samways was also not a primary reference, citing substantial differences in design between that patent and Gamon’s.
“Samways has a dual dispensing area, compared to the single dispensing area of the claimed designs, and has a front label area with different dimensions that extends across both dispensing areas,” the court ruled.
In a dissenting opinion, circuit judge Pauline Newman said that the majority’s analysis was “not in accordance with design patent law”.
Citing the majority’s finding that “Linz’s design is made to hold a cylindrical object in its display area,” Newman wrote that the majority had incorrectly “added” a cylindrical object to the Linz design for the purpose of its analysis.
The Linz design does not explicitly include a cylindrical object, whereas Gamon’s design patents do.
“Only after a primary reference is found for the design as a whole, is it appropriate to consider whether the reference design may be modified with other features, selected to match the patented design,” Newman wrote.
The PTAB will now reconsider the issue on remand.
Did you enjoy reading this story? Sign up to our free daily newsletters and get stories like this sent straight to your inbox.
Today's top stories:
Jury tells Verisk to pay $125m for infringing EagleView patents
