Saturday, February 20, 2016

Heinz prevails in ketchup patent battle

Trib Total Media noted a patent victory for Kraft/Heinz in the ketchup wars:

A federal appeals court Friday [ 20 Feb 2016 ] upheld a decision canceling a Chicago man's patent covering a condiment package, which the man claimed H.J. Heinz Co. infringed upon when it developed its Dip & Squeeze ketchup containers.

Scott White sued Heinz in 2012 in federal court in Chicago alleging the ketchup-maker stole his idea for Dip & Squeeze. That case was stayed after Heinz asked the Patent and Trademark Office to re-examine White's patent, which the office eventually canceled.


The CAFC affirmed the PTAB on the IPR of US 8,231,026.

The case brings up the use of figures. Here, oddly, the appellant was arguing for an inherent feature.

Mr. White’s amalgamation of these figures and analysis
is misplaced. We have consistently found “patent
drawings do not define the precise proportions of the
elements and may not be relied on to show particular
sizes if the specification is completely silent on the issue.”
Hockerson-Halberstadt, Inc. v. Avia Grp. Int’l, Inc., 222
F.3d 951, 956 (Fed. Cir. 2000); see also In re Wright, 569
F.2d 1124, 1127 (CCPA 1977) (“Absent any written description
in the specification of quantitative values,
arguments based on measurement of a drawing are of
little value.” (citation omitted)).

Mr. White further argues that “a physical stop or lockup
seal [i.e., adhesive] is necessarily present because
Selker would otherwise be susceptible to over-peeling that
would render it inoperable.” Appellant’s Br. 30. Without
a stop, Mr. White contends, Selker would not work for its
intended purpose. Id. at 14 (“A stop . . . is fundamental to
Selker’s operation.”).


Both Mr. White and Heinz submitted declarations detailing
their respective positions on why a stop was or was
not present in Selker.

THEN, another inherency argument:

Mr. White next argues that, even if the PTAB correctly
found that Selker does not inherently disclose a stop,
the PTAB committed legal error when it asked him “to
demonstrate Selker inherently disclosed the absence of
the totally removable limitation.” Appellant’s Br. 26. Mr.
White contends that in order for Selker to anticipate the
’026 patent claim limitation of “totally removable,” it
“must have ‘necessarily’ disclosed a totally removable
cover.” Id. (quoting In re Montgomery, 677 F.3d 1375,
1380 (Fed. Cir. 2012)). He explains “[i]t is not enough
that Selker likely or probably discloses a totally removable
cover . . . .” Id. (citation omitted). Mr. White also
contends the PTAB “improperly shift[ed] the burden of
demonstrating inherency” because “it was the Examiner’s
and the Board’s responsibility to show the limitation was
necessarily present.” Id. at 23 (citation omitted).
Mr. White’s argument is contrary to the PTAB’s findings.
Here, the PTAB determined that “Selker neither
depicts in any drawing, nor describes in any textual
disclosure, structure that might prevent the cover from
being removed from both ends of Selker’s package.” J.A.
5. Rather, the PTAB determined that Selker expressly
“disclose[d] reliance upon the user to refrain from peeling
the cover back from either end of the package any more
than necessary.” J.A. 5–6.

The PTAB did not err in its analysis of inherent anticipation.
Inherent anticipation requires that the “prior
art . . . necessarily include the unstated limitation.”
Transclean Corp., 290 F.3d at 1373 (citing Cont’l Can Co.,
948 F.2d at 1268–69). Here, the PTAB found Selker did
not disclose a stop, which was supported by express
disclosures in Selker that cautioned the user to “refrain
from peeling the cover back . . . any more than necessary.”
J.A. 6. Under substantial evidence review, there is sufficient
evidence to support the PTAB’s factual determination
with respect to inherent anticipation. See Rambus,
694 F.3d at 46 (“Anticipation is a question of fact and we
uphold the Board’s factual determinations unless they are
not supported by substantial evidence.” (citation omitted)).

The case: Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. 95/002,241.


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