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Sugarfina and Sweet Pete's have reached an agreement to settle allegations that Sweet Pete's infringed Sugarfina's trademarks, copyrights, patent and trade dress by copying the "museum-quality Lucite" used to package its candies. Sugarfina Inc. v. Sweet Pete's, No. 17-4456 (C.D. Cal., settlement notice filed March 5, 2019). Under the agreement, Sweet Pete's will pay $2 million and change its packaging from the allegedly infringing cubes.

The U.S. Court of Appeals for the Federal Circuit has vacated the Patent Trial and Appeal Board's (PTAB's) rejection of a patent application for a fruit dehydration apparatus. In re Durance, No. 2017-1486 (Fed. Cir., entered June 1, 2018). The inventors applied for a patent for a microwave dehydration container containing a rotating chamber to tumble organic materials during the drying process, but the examiner rejected it for prior art and structural identity and PTAB affirmed. The Federal Circuit found that “the Patent Office continually shifted its position” on its grounds for rejection, resulting in the applicants responding to “moving target rejections.” In addition, the court held that PTAB failed to review the applicants’ reply brief arguments, directing the board to consider them on remand and to determine whether a structural identity rejection can be used to find a prima facie case of obviousness for method claims.

Washington State University (WSU) has filed a lawsuit alleging Phytelligence Inc., a WSU horticulture professor's company, sold an apple cultivar to a third party, breaching a propagation contract and infringing the university’s patent. Wash. State Univ. v. Phytelligence Inc., No. 18-0361 (W.D. Wash., filed March 8, 2018). WSU allegedly agreed to allow Phytelligence, which aims to commercialize technology for soilless tissue cultures and ripening chemistries, to propagate the cultivar that produces the Cosmic Crisp apple, WA 38. The complaint alleges that although the contract forbade Phytelligence from transferring or selling the cultivar, the company has sold WA 38 trees to at least one grower. The complaint also asserts that after the cultivar was patented, WSU allowed a nonprofit association to grant licenses for propagation and sale of the trees; Phytelligence allegedly inquired about obtaining a licence but did not apply for one. In addition, Phytelligence previously filed a lawsuit against…

Candy company Sugarfina has filed a lawsuit alleging that Sweitzer LLC copied its “innovative, distinctive, and elegant product and packaging” as well as its "types of candy" and “protectable names.” Sugarfina, Inc. v. Sweitzer LLC, No. 17-7950 (C.D. Cal., filed October 31, 2017). Sugarfina asserts that it has approximately 140 lines of candy, presented in “museum-quality Lucite that emphasizes the artisanal and rarefied quality of a gourmet small-portion tasting experience,” and that Sweitzer copied the “size, shape, color or color combinations, texture, graphics and sales techniques” in its candy packaging and store designs. Claiming trade-dress infringement under the Lanham Act, federal and common law trademark infringement, unfair business practices, patent and copyright infringement, Sugarfina seeks damages, corrective advertising, accounting, restitution and attorney’s fees. Sugarfina filed a similar infringement claim against Sweet Pete's in June 2017.

After a jury unanimously found in May 2017 that two former University of California, Davis professors willfully infringed the university’s patents on a strawberry breed they developed in the school’s program, both sides have agreed on a settlement that will dispose of all other claims against each other. Regents of Univ. of Cal. v. Cal. Berry Cultivars, No. 16-2477 (N.D. Cal., filed September 18, 2017). The professors, who left the university to form a private strawberry-breeding company, have agreed to return breeding materials to the school and relinquish $2.5 million in future royalties related to pre-existing patent-share agreements but will retain interests in some of the varietals they bred. Additional details appear in Issues 604, 633 and 636 of this Update.

Sugarfina, maker of “luxury boutique” candies, has filed a trademark, copyright, patent and trade dress infringement suit against Sweet Pete’s alleging the competitor relied “heavily on several design elements of Sugarfina’s distinctive packaging and marketing” of Cuba Libre®, Peach Bellini®, Fruttini, Candy Cube, Candy Concierge and Candy Bento Box® products. Sugarfina v. Sweet Pete’s, No. 17-­4456 (C.D. Cal., filed June 15, 2017). Sugarfina asserts that Sweet Pete’s copied the names, “size, shape, color or color combinations, texture, graphics and sales techniques” of all six named product lines that Sugarfina packages in “museum­-quality Lucite.” Sugarfina further argues that Sweet Pete’s was “a failing business prior to its radical transformation into a Sugarfina copycat.” The plaintiff seeks an injunction, treble damages, corrective advertising and attorney’s fees.   Issue 639

A New York federal court has denied a motion to dismiss a patent infringement and trade dress suit filed by candy maker The Topps Co. alleging that a competitor copied its Juicy Drop lollipop. The Topps Co. v. Koko’s Confectionery & Novelty, Inc., No. 16-­5954 (S.D.N.Y., order entered June 7, 2017). Topps alleged that Koko’s Squeezy Squirt Pop copied a design that allows the user to spray a lollipop with flavored liquid using a two­-chamber mechanism; further, Koko’s used a similar logo, font and color on the packaging and similar names for the candies’ flavors, the complaint asserted. The court’s decision followed oral arguments over whether the positioning of the chambers of the mechanism relative to the user was infringing. Topps’ attorney reportedly told the court, “It can’t be the law that just because you hold it at 90 degrees, it’s not an infringement.” See Law360, June 6, 2017.  …

A California jury found that retired University of California, Davis, professors willfully infringed the university’s patents on strawberries they developed in the school’s program. Regents of Univ. of Cal. v. Cal. Berry Cultivars, No. 16­-2477 (N.D. Cal., verdict filed May 24, 2017). The professors formed a private strawberry-­breeding company, California Berry Cultivars, after retiring from UC Davis. The jury found they had engaged in conversion, willful infringement, breach of duty of loyalty and breach of fiduciary duty, but released them from allegations that they interfered with the university’s business contracts or prospective economic relationships. Additional details appear in Issues 604 and 633 of this Update.   Issue 636

A federal court has granted summary judgment on a majority of issues in a dispute between scientists and the University of California Davis centered on the intellectual ­property rights of two strawberry varieties. Cal. Berry Cultivars, Inc. v. Regents of U. of Cal., No. 16-­2477 (N.D. Cal., filed May 2, 2015). Two former UC Davis scientists and their company sued the university alleging it refused to license the strawberry varieties they invented; additional details on the complaint appear in Issue 604 of this Update. The court granted summary judgment on most of the issues, leaving open the scientists’ assertions that UC Davis breached the implied covenant of good faith and fair dealing as well as the unfair competition claim. However, because the court also ruled in favor of UC Davis’ breach of contract claim, it noted that the jury verdict and final judgment may “sock it to both sides .…

J.R. Simplot Co. has filed a patent infringement suit against McCain Foods USA, Inc. alleging McCain copied Simplot’s twisted potato fries product, Sidewinders®. J.R. Simplot Co. v. McCain Foods USA, Inc., No. 16-0449 (D. Idaho, filed October 7, 2016). Simplot asserts that its patent, “Spiral Potato Piece,” covers the ornamental features of Sidewinders®, including its “inherently distinctive and nonfunctional” shape, and that side-by-side comparisons indicate “McCain copied Simplot’s patented Sidewinders® design in developing its Twisted Potato products.” Simplot alleges patent and trade dress infringement and seeks damages, an injunction and attorney’s fees.   Issue 619