An Illinois federal court has granted summary judgment in favor of
Kellogg North America Co. in a lawsuit disputing the patented design
of resealable cookie packaging. Intercontinental Great Brands LLC v.
Kellogg N. Am. Co., No. 13-0321 (N.D. Ill., order entered August 3, 2015).
Intercontinental Great Brands (formerly Kraft Foods Global Brands)
sued Kellogg and its affiliates alleging patent infringement, and Kellogg
argued that the patent was invalid. Kellogg’s resealable container, which
“was designed to ‘circumvent the Kraft patent while maintaining
similar properties,’” allows consumers to open a package of cookies then
reattach the plastic flap to maintain freshness.

Kellogg argued that the patent was invalid because the asserted claims
in the patent are obvious, and the court agreed. The standard of
obviousness includes considerations of four factors: (i) the scope of
prior art, (ii) differences between the prior art and the claim at issue,
(iii) the level of ordinary skill and (iv) secondary considerations like
commercial success, “long felt but unsolved needs” and the failure of
others to create the art at issue. The court assessed previous incarnations
of resealable packages, such as a 2002 patent for a package that keeps
meat and cheese from drying out in a refrigerator and a 2001 system for
keeping sushi, and found that the claims in Kraft’s patent are obvious
as machinery updates to the prior art. Accordingly, the court granted
Kellogg’s motion for summary judgment, invalidating the patent.


Issue 574

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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