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8 September 2017Patents

Federal Circuit invalidates Kraft cookie packaging patent

The US Court of Appeals for the Federal Circuit has affirmed the invalidation of a patent covering cookie packaging in a dispute between Kraft (now Intercontinental Great Brands) and Kellogg’s.

US patent number 6,918,532, which is owned by Kraft and covers a resealable food container, was invalidated by the court yesterday, September 7.

The patent describes a combination of two known kinds of packaging: one, common for cookies, uses a frame surrounded by a wrapper while the other, common for wet wipes, uses a package on which the label may be pulled back to access the contents.

Issued in 2005, the patent was supplemented with additional claims on re-examination in 2011. The re-examination had been sought by a Swedish company that produces resealable packages.

Kraft sued Kellogg’s in the US District Court for the Northern District of Illinois in 2013, alleging that Kellogg’s had sold cookies in resealable packages that a Kellogg’s document suggested were designed to “‘circumvent the Kraft patent while maintaining similar properties”.

The district court held that Kellogg s entitled to summary judgment of invalidity for obviousness of the asserted claims of the ‘532 patent.

According to the district court, the patent was obvious in light of two articles called “Machinery Update” (published in 2001/02), when combined with existing cookie packages.

The court also held that Kraft was entitled to summary judgment rejecting Kellogg’s counterclaim of unenforceability of the patent due to alleged inequitable conduct by Kraft.

Both parties appealed.

In a 2-1 split decision, the Federal Circuit confirmed the district court’s decision.

Kraft claimed that the district court had treated its objective indicia as an “afterthought”, “writing off the patent before turning to objective indicia”, but the Federal Circuit disagreed.

On behalf of the court, US District Judge Richard Taranto, said: “Kraft cannot complain that the district court failed to credit its evidence regarding objective indicia: the district court accepted the facts Kraft asserted about commercial success, industry praise, and copying.”

Kraft also argued that the district court had improperly resolved factual disputes between the parties.

The court had concluded that the only reasonable findings on the record were: the “Machinery Update” articles disclosing all the elements of the claims in combination, except the required frame, which was common for cookies, and that the “ordinary creativity of the relevant skilled packaging artisan motivated and made predictable the use of the Machinery Update’ package with a cookie-protecting frame”.

Again, the Federal Circuit disagreed with Kraft, holding that the district court’s findings were enough to justify the conclusion of obviousness.

“On this record, we conclude, there is no basis for overturning the district court’s conclusion that any reasonable jury would have to find a motivation to combine,” said the court.

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