The Topps Co. has filed a patent and trade-dress infringement lawsuit against Koko’s Confectionery & Novelty Inc. alleging that Koko’s Squeezy Squirt Pop copies some features of the Juicy Drop lollipop. Topps Co. v. Koko’s Confectionery & Novelty Inc., No. 16-0595 (S.D.N.Y., filed July 26, 2016). The complaint targets Squeezy Squirt Pop’s logo, font, bright and vivid colors set against a black background, flavor names and the appearance of the word “pop” as infringing trade dress. In addition, Topps asserts ownership of a patent on “a combination lollipop candy and flavored liquid dispenser”; a Squeezy Squirt Pop “combines a lollipop with a flavored liquid in a squeeze dispenser that is then squirted into a trough-shaped cavity in the lollipop itself so that it can then be licked off.” For alleged patent infringement, trade dress infringement and a violation of the Lanham Act, Topps seeks an injunction, an order recalling the…
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Ganeden Biotech Inc. has filed a lawsuit against American Brewing Co., Inc. and its 2015 acquisition, B&R Liquid Adventure, alleging the companies infringe its patents on a particular strain of probiotic bacteria through the marketing and sale of their búcha® beverage. Ganeden Biotech, Inc. v. Am. Brewing Co., Inc., No. 16-0876 (N.D. Ohio, filed April 13, 2016). Ganeden asserts that it holds a patent on a specific GBI-30 strain of Bacillus coagulans as used in tea and another patent on the strain as used in all other products. B&R began selling búcha® in 2013 and lists the GBI-30 strain as an ingredient, according to the complaint. “Because Ganeden holds a patent on GBI-30 and is the legitimate source of GBI-30, Ganeden believes that Defendants’ products likely contained Bacillus coagulans (which Defendants could have obtained elsewhere) but not always the GBI-30 strain as labeled,” the biotech company argues. For allegations of patent infringement and unfair…
The U.S. Court of Appeals for the Federal Circuit has affirmed a Patent Trial and Appeal Board ruling that a method of enzymatic hydrolysis of soy fiber for use in creating food additives is not patentable because it would have been obvious in light of previous inventions. In re Urbanski, No. 15-1272 (Fed. Cir., order entered January 8, 2016). The plaintiffs challenged the U.S. Patent and Trademark Office’s denial of a patent for their technique of creating food additives from soy fiber, which the examiner found to be “readily combinable” from two prior inventions. The Federal Circuit agreed with the examiner’s and appeals board’s determinations that a person of ordinary skill would have expected that adjusting the process as the plaintiffs did would have yielded the results they reached. Accordingly, the court affirmed the prior dismissal. Issue 590
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…
A Minnesota federal court has granted in part and denied in part a motion to dismiss in a lawsuit alleging that Hormel Food Corp. stole trade secrets and breached contractual agreements in its joint venture to develop new methods of cooking bacon. Unitherm Food Sys. Inc. v. Hormel Food Corp., No. 14-4034 (D. Minn., order entered January 27, 2015). Unitherm alleged that it created the first viable method for pre-cooking sliced bacon—a process using spiral ovens and super-heated steam—and agreed to develop a commercially viable product with Hormel in June 2007. Unitherm asserted that Hormel disclosed its process, which Unitherm had not yet patented, to a rival company in violation of confidentiality agreements, which constituted an appropriation of trade secrets. The court disagreed, finding that Unitherm’s July 2009 patent application precluded its claim of trade secrets because patented processes cannot, by necessity, be trade secrets due to the disclosure of…
The Federal Circuit Court of Appeals has affirmed a lower court’s ruling that unauthorized public use of the Scarlet Royal and Autumn King varieties of table grapes does not invalidate the U.S. Department of Agriculture’s (USDA’s) patents on them. Delano Farms Co. v. Cal. Table Grape Comm’n., No. 2014-1030 (Fed. Cir., order entered January 9, 2015). The appellants, three farming companies, had challenged the patents on the grounds that they were in public use for more than a year before the date of the patent applications. According to the facts determined by a lower court’s bench trial, the mature fruit of grape varieties were exhibited at an experimental variety open house in 2001 at California State University, Fresno. Without authorization, a USDA employee gave a grape grower the plant materials for the unreleased varieties, and that grower in turn gave the materials to his brother and cousin in addition to…
The Third Circuit has reversed a Michigan district court’s dismissal in a case alleging that H.J. Heinz Co. stole the idea for the “Dip & Squeeze” ketchup packet from plaintiff David Wawrzynski, an inventor who had proposed the idea to the company in 2008. Wawrzynski v. H.J. Heinz Co., No. 13-4100 (3d Cir., order entered July 21, 2014). Wawrzynski owned a 1997 patent for a condiment packet that allowed users to dip food into it. From that idea, he developed a “separate and distinct” condiment packet that he called the Little Dipper, which allowed users to either dip food into it or squeeze out the contents. He met with Heinz in 2008 and discussed the possibility of selling the idea to the company, but they never reached a deal. Later, Heinz released its Dip & Squeeze ketchup packet, which allows users the option of dipping food directly into it or…
The University of California Davis, has reportedly filed a motion in California state court to dismiss the breach of contract suit that the California Strawberry Commission filed in October after it learned that the university may stop breeding and selling strawberry germplasm to farmers. UC Davis has developed and sold its strawberry germplasm at low royalty rates to the commission for several decades through a research program headed by two professors. According to the commission’s complaint, the professors announced their intention to resign in 2012 and take their research to a private company, raising the cost of royalties and limiting the sales to select strawberry growers, and as a result, the university notified the commission of its intention to shutter the program. In its complaint, the commission argued that its growers have directly funded the university program, so they are entitled to receive the new strawberry varieties that the professors…
In the first investigation subject to a pilot program, the International Trade Commission (ITC) has agreed with an administrative law judge (ALJ) that a company alleging infringement of its patents for laminated packaging by the importers of liquor, wine, toys, electronics, and cosmetics failed to show that it had a domestic industry that would be harmed by the alleged infringement. In re Certain Prods. Having Laminated Packaging, & Components Thereof, No. 337-TA-874 (ITC, decided August 6, 2013). Several alleged infringers, including Camus Wine & Spirits Group of Cognac, France, were terminated from the investigation before it was resolved on the basis of settlement agreements with claimant Lamina Packaging Innovations, Inc. of Longview, Texas. ITC has the authority to bar imports of products deemed harmful to a domestic industry and announced earlier this year that it would test expedited procedures in cases alleging unfair practices in import trade. Under the program, ITC…
The Federal Circuit Court of Appeals has affirmed a district court’s dismissal of the declaratory judgment action brought by a number of organizations representing the interests of organic farmers. Organic Seed Growers & Trade Ass’n v. Monsanto Co., No. 2012-1298 (Fed. Cir., decided June 10, 2013). The farmers sought a declaration of non-infringement and invalidity with respect to 23 patents on various crops, including soybeans and corn. Details about the lower court’s ruling appear in Issue 429 of this Update. According to the Federal Circuit, “Monsanto has made binding assurances that it will not ‘take legal action against growers whose crops might inadvertently contain traces of Monsanto biotech genes (because, for example, some transgenic seed or pollen blew onto the grower’s land), and [the organic farmers] have not alleged any circumstances placing them beyond the scope of those assurances.” The court agreed with the district court that there was no…
