08 September 2017
Reporter: Barney Dixon

Kraft loses cookie patent appeal

Intercontinental Great Brands’s (formerly Kraft Foods) patent for cookie packaging is invalid, according to a new ruling from the US Court of Appeals for the Federal Circuit.

Kraft brought a case against Kellogg’s in 2013, alleging that Kellogg’s had used resealable packages that circumvent the Kraft patent while maintaining similar properties.

The US District Court for the Northern District of Illinois found the patent to be obvious and held that Kellogg’s was entitled to a summary judgement of invalidity.

But the court also held that Kraft was entitled to a summary judgement rejecting a counterclaim for unenforceability.

Both parties appealed to the Federal Circuit, which upheld the lower court’s decision, invalidating the Kraft patent.

In its ruling, the Federal Circuit said that Kraft’s evidence of “commercial success tied to the patent-claimed packaging, industry praise, and copying by Kellogg’s”, could not overcome the obviousness of the patent.

However, Judge Jimmie Reyna dissented from the majority, arguing that the court had “turned a blind eye to what I consider to be a grave concern: the application of a prima facie test that necessarily achieves a legal determination of obviousness prior to full and fair consideration of evidence of objective indicia of nonobviousness”.

He said: “There should be no prima facie rule or test in the obviousness inquiry. Stated differently, the burden of persuasion should not shift from the challenger to the patent holder after a legal determination of obviousness has already been made.”

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