On September 7, 2017, the Federal Circuit, in a split decision, affirmed the district court's summary judgment of obviousness despite substantial and compelling evidence of objective indicia of non-obviousness. Intercontinental Great Brands LLC v. Kellogg N.Am. Co., No. 2015-2082, -2084 (Fed. Cir. Sept. 7, 2017). The Federal Circuit agreed with the district court's finding that significant copying, increased sales volume, customer and industry praise, and long-felt need were not enough to overcome the prima facie obviousness.
Kraft sued Kellogg claiming that Kellogg infringed its patent directed to a re-sealable food package that keeps cookies fresh. The district court determined that a person of ordinary skill in the art would have been motivated to combine the known elements of "frame" and "rigid re-sealable sushi tray" because the lack of a "convenient opening and reclosing arrangement" was a known problem for cookie packaging. The district court also acknowledged the substantial and compelling evidence of objective indicia of non-obviousness--Kraft's sales volume increase of 4% after new packaging, evidence of positive consumer feedback, survey results praising the invention, industry awards for innovative packaging technology, and Kellogg's intentional copying of its packaging. However, the district court granted summary judgment motion finding that the prima facie case of obviousness was too strong.
On appeal, the dispute was the procedure used to determine obviousness under KSR namely, that the district court considered only the first three factors when assessing the prima facie case and then moved on to the fourth factor to decide if secondary considerations would overcome the prima facie obviousness. The majority of the panel agreed with the district court's analysis stating that its analysis fulfills KSR's requirement that the approach to determining obviousness be expansive and flexible. Dissenting in part, Judge Reyna expressed his concern that if "such significant evidence does not make a difference in this case, it is hard to imagine a situation in which it would."
Full text of opinion is available here.
Kraft sued Kellogg claiming that Kellogg infringed its patent directed to a re-sealable food package that keeps cookies fresh. The district court determined that a person of ordinary skill in the art would have been motivated to combine the known elements of "frame" and "rigid re-sealable sushi tray" because the lack of a "convenient opening and reclosing arrangement" was a known problem for cookie packaging. The district court also acknowledged the substantial and compelling evidence of objective indicia of non-obviousness--Kraft's sales volume increase of 4% after new packaging, evidence of positive consumer feedback, survey results praising the invention, industry awards for innovative packaging technology, and Kellogg's intentional copying of its packaging. However, the district court granted summary judgment motion finding that the prima facie case of obviousness was too strong.
On appeal, the dispute was the procedure used to determine obviousness under KSR namely, that the district court considered only the first three factors when assessing the prima facie case and then moved on to the fourth factor to decide if secondary considerations would overcome the prima facie obviousness. The majority of the panel agreed with the district court's analysis stating that its analysis fulfills KSR's requirement that the approach to determining obviousness be expansive and flexible. Dissenting in part, Judge Reyna expressed his concern that if "such significant evidence does not make a difference in this case, it is hard to imagine a situation in which it would."
Full text of opinion is available here.
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