Kraft Foods Group Brands LLC v. TC Heartland LLC et al

Filing 436

MEMORANDUM ORDER re 317 MOTION for Summary Judgment filed by Kraft Foods Group Brands LLC is DENIED. Signed by Judge Leonard P. Stark on 1/12/17. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KRAFT .FOODS GROUP BRANDS
LLC,
Plaintiff,

v.

C.A. No. 14-28-LPS

TC HEARTLAND, LLC d/b/a
HEARTLAND FOOD PRODUCTS
GROUP and HEARTLAND
PACKAGING CORPORATION,
Defendant.

MEMORANDUM ORDER

1.

On Jrily 6, 2016, pla~ntiff Kraft Foods Group Brands LLC ("Kraft") filed a motion

seeking summary judgment of infringement of claims 1and15 of U.S. Patent No. 8,603,557 (the
"'557 patent") as well as claim 1 of U.S. Patent No. 8,511,472 (the '"472 patent"). 1 (D.I. 317) ·
Kraft also seeks summary judgment of no inequitable conduct assocfated with prosecution of the
'557 patent. (See id.) The Court heard argument on this and other motions on August 30, 2016.
(See D.I. 416 ("Tr."))

2.

Summary judgment is appropriate if "there is no genuine dispute as to any

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Defendants TC Heartland, LLC and Heartland Packaging Corporation ("Heartland" or
· "Defendants") did not file a Daubert motion or cross-motion for summary judgment of noninfringement, but instead submitted a "request" in their answering brief seeking summary
judgment of non-infringement. (See D.I. 360 at 23-27)· This request was based on Heartland's
characterization of Kraft's evidence as consisting of attorney argument and "wholly conclusory
and insufficiently detailed expert testimony." (Id. at 23) Heartland's request for summary
judgment in an answering brief is untimely under the scheduling order (see D.I. 38, as amended
by D .I. 201) and would also be denied even if considered on its merits.

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material fact and the movantis entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a).
The moving party bears the burden of demonstrating the absence of a genuine issue of material
fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
3.

According to Kraft, undisputed facts show that certain lots of Heartland products

literally infringe the patents-in-suit. An accused product infringes a patent claim when it meets
every limitation of the asserted claims. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co.,
520 U.S. 17, 40 (1997). In analyzing literal infringement, the Court must firstinterpret the
claims of the patent, and then compare the allegedly infringing product to the claims as
· construed.2 See Intellectual Sci. & Tech., Inc. v. Sony Elecs., Inc., 589 F.3d 1179, 1183 (Fed. Cir.
2009) .. Kraft contends that the accused products satisfy each limitation of the patents-in.;.suit.
4.

The '557 patent relates to a flavored liquid beverage concentrate comprising

. certain ingredients and packaged in a particular manner. In support of its motion, Kraft
submitted a summary of Heartland operational documents showing the pH and both the relative

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In its answering brief, Heartland. disputes whether this is the proper approach to
analyzing infringement, arguing that 35 U.S.C. § 271(a) "does not use the word 'claim,' and the
patent claim words cannot expand a patentee's rights beyond equivalents of corresponding
structure, material, or acts described in the patent's specification." (D.I. 360 at 22) Heartland
asks the Court to consider in its infringement analysis whether Kraft's claimed inventions
"advanced the art substantially or worked only a slight step forward" and to "determine whether
the accused Heartland products owe any intellectual debt to" the patent disclosures. (Id. at 23
(internal quotation marks omitted)) It appears that Heartland is urging the Court to dispense with
the "bedrock principle of patent law that the claims of a patent define the invention to which the
patentee is entitled to the right to exclude," Phillips v. A WH Corp., 415 F.3d 1303, 1312 (Fed.
Cir. 2005) (internal quotation marks omitted), and to disregard the equally axiomatic rule that a
Court must assign claim terms their plain and ordinary meaning to a skilled artisan and avoid
"importing limitations from the specification into the claim[s]," id. at 1323. The Court is not
persuaded that Heartland's proposed analysis is appropriate, for largely the same reasons the
Court gave in rejecting Heartland's similar arguments at claim construction. (See D.I. 198 at 2326)
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and absolute amounts of the ingredients in Heartland's accused products. (D.I. 327-10 at 2-16 of
28; see also D.I. 318 at 12-16) Among other materials; Kraft also submitted expert reports of Dr.
Marvin J. Rudolph (see D.I. 324) and Dr. S. Paul Singh (see D.I. 330).
5.

Claim 1 of the '557 patent claims:
A packaged flavored liquid beverage concentrate comprising:
a container body having a closed bottom end, a top
end with a neck defining an outlet opening and a
sidewall extending between the top and bottom ends
to define an interior of the container body accessible
through the outlet of the top end, the sidewall being
flexible and resilient, the sidewall including
opposing front and rear walls and a pair of opposing
end walls extending there between, the opposing
front and rear walls having a maximum width that is
greater than a maximum width of the end walls;
a flavored liquid beverage concentrate in the interior
of the container body comprising:
about 30 to about 65 percent water by weight;
about 15 to about 30 percent acid by weight;
up to about 10 percent buffer by weight, the buffer
selected from the group consisting of a potassium
salt of an acid, a ·s.odium salt of an acid, and
combination thereof; and
about 1 to about 30 percent flavoring by weight,
the concentrate having a pH of about 1.9 to· about
2.4 and a viscosity of about 1 to about 75 cP when
measured at 20° C., and the concentrate having a
concentration such that, when diluted at a ratio of
about 1:75 to about 1:160 to provide a beverage, the
concentrate delivers about 0. 01 to about 0. 8 percent
acid by weight of the beverage made by the flavored
beverage concentrate;

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a lid attached to the neck of the container body and
defining an exit path aligned with the outlet opening
of the container body and through which the
flavored liquid beverage concentrate can be
dispensed; and
a valve supported by the lid and disposed in the exit
path, the valve movable from a closed position,
whereby flow of flavored liquid beverage
concentrate through the exit path is substantially
blocked when the sidewall of the container body is
unsqueezed, to an open position, whereby the
flavored liquid beverage concentrate from the
interior of the container body can be dispensed in a
jet when the front and rear walls· of the sidewall of
the container body are squeezed.
Claim 15 is similar to claim 1, but includes different packaging limitations relating to the cap and
valve, and includes the same pH ceiling of 2.4 but no floor. These differences are immaterial to
the Court's ruling on Kraft's summary judgment motion, so the discussion below applies equally
to both claims.
6.

Heartland does not appear to contest that the accused products are· "packaged

flavored liquid beverage concentrates," contain "about 15 to about 30 percent acid by weight,"
have "a visc~sity of about 1 to about 7 5 cP" when meas~ed under the required conditions, and
"have a concentration such that, when diluted at a ratio of about 1:75 to about 1:160 to provide a
beverage, the concentrate delivers about 0.01 to about 0.8 percent acid by weight of the beverage
made by the flavored beverage concentrate." ('557 patent; see generally D.I. 360 at 35-40)
7.

Heartland does contest whether its accused products meet the pH limitations of

the asserted claims, and with respect to at least these limitations the Court finds a genuine dispute
of material fact, rendering summary judgment of infringement unwarranted. Kraft argues that at

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least the lots identified by Dr. Rudolph fall within the claimed pH ranges, according to
Heartland's own testing data. (D.I. 318 at 20-21; see also D.I. 327-10 at 2-16of28; D.I. 324-1 at
48-59 of 82) Heartland responds that the pH measurements upon which Kraft relies ~re
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unreliable and possibly inaccurate. (See D.I. 360 at 35-38) Heartland ~her contends that "pH
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is a physical property ... subject to variability in its measurements," arid that highly concentrated
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solutions "pose particularly difficult problems for pH measurement" dqe to ionic strength effects.
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(Id. at 35-36) Kraft responds that, when possible, itused the pH readin:gs taken "at the point of

manufacture" and that, in order for Heartland to prevail, a jury would "have to find unreliable the
pHmeasurements that Heartland considers reliable for food safety plll]joses." (D.I. 367 at 15)
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A reasonable factfinder, taking the evidence in the light most favorable to one or the other
. I
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of the parties, could find for one or the other of the parties. Accordingly, there is a genuine
dispute of material fact as to whether the accused products meet the pH limitations of claims 1
and 15. Thus, Kraft's motion for summaryjudgment of infringement of the '557 patent is
DENIED.

8.

Given the determination above, it is not necessary for the Court to further

determine at this time whether there are genuine disputes of material fact with respect to other
claim elements; the Court is unable to grant summaryjudgment of infringement if, as here, a
reasonable finder of fact could find for the accused infringer on one or more limitations of the
asserted claims. See generally Presidio Components, Inc. v. Am. Tech. Ceramics Corp., 702
F.3d 1351, 1358 (Fed. Cir. 2012) (finding ofliteral infringement is only proper if accused
products are shown to meet "each and every limitation of the asserted claims"). The Court
makes the following observations with respect to certain of the remaining limitations:
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A.

The parties disagree about whether Heartland's accused products meet the

requirement that the claimed beverage concentrates contain "about 1 to about 30 percent
flavoring by weight." Kraft's expert identified the flavored beverage concentrate components
that Kraft contends constitute "flavoring" in Heartland's accused products. (See D.I. 324-1 at 67
of 82, citing id. at 48-59 of 82) Heartland and its expert respond that the patent defines the term
"flavoring" in "entirely functional" terms and that, as such, Kraft has failed to show that the
identified compounds constitute "flavoring" because Kraft has presented "no evidence that
Heartland has used 'flavoring' whose ingredients are identical or equivalent to any 'flavoring'
disclosed and claimed in the '299 or' 557 patents." (D.I. 360 at 28 (emphasis in original); see
also id. at 27-29) Because the Court did not construe "flavoring," it is (at least at this point)

given· its plain and ordinary meaning to a person of skill in the art. Since the claim term does not
use the word "means," there is a presumption that a person of ordinary skill in the art would not
understand it to be a means-plus-functionterm, pursuant to 35 U.S.C. 112 if 6. See Watts v. XL
Sys., Inc., 232 F.3d 877, 880 (Fed. Cir. 2000). Heartland has not, on the current record, rebutted

that presumption or shown that "flavoring" is used in a functional manner in the asserted claims.
B.

The parties further disagree about whether Heartland's accused products

meet the packaging limitations (of a container body, lid, and valve, as described in the claims).
Kraft's expert reports opine that a person of ordinary skill in the art at the time of the invention
would understand that Heartland's accused products include bodies, lids, and valves that come
within the scope of the claim limitations. (See D.I. 318 at 18-19 and 22-23 (citing accompanying
declarations)) For its contrary view, Heartland relies (at least in part) on the opinion of Dr.
Robert Kimmel (see D.I. 360 at 29-33), but that opinion is being stricken (by separate order
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entered today).
C.

The parties further disagree about whether Heartland's accused products

meet the requirement that the flavored liquid beverage concentrates contain "about 30 to 65
percent water by weight." Heartland argues that Kraft's expert analysis is flawed because it does
not account for water contained in the "coloring and flavor mixtures" obtained from third parties,
but instead considers only the water added during manufacturing. (D.I. 360 at 38-39) There
appears to be no dispute regarding whether the amount of water added to Heartland's products
during manufacturing meets the weight percentage requirements of claim 1.
9.

The '4 72 patent relates to containers and shrink packaging. The parties dispute

whether Heartland's accused products meet the "converging sidewalls" and "span" requirements
of claim 1. There is a genuine dispute of material fact at least as to whether the accused
containers fall within the claim's "converging sidewalls" limitation. Although Heartland again
relies on Dr. Kimmel's now-stricken testimony on this issue (see D.I. 360 at 33-34), it is apparent
from the materials submitted that a reasonable jury could find for either party. (See generally
D.I. 330-2 at 10of197) Therefore, Kraft's motion for summary judgment of infringement of
claim 1 of the '472 patent is DENIED.
10.

Finally, Kraft moves for summary judgment of no inequitable conduct in relation

to its prosecution of the '557 patent. Heartland sets out eight different theories as to how Kraft
allegedly acted improperly. (See D.I. 360at17-19) In Kraft's view, Heartland impermissibly
expands the scope of its inequitable conduct defense beyond its pleading. (See D.I. 367 at 2-5)
Heartland has sought leave to file a second amended answer (see D.I. 405), which the Court has
today granted by separate Order, resolving this basis for Kraft's motion. The Court has also
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today ordered Kraft to provide additional discovery, which Heartland contends may ·be pertinent
to the inequitable conduct claims it intends to press at trial. (See, e.g., D.I. 395, D.I. 400)
Accordingly, summary judgment is not appropriate at this time. Kraft's motion with respect to
inequitable conduct is DENIED WITHOUT PREJUDICE. 3

HON. LEONARD P. STA
UNITED STATES DISTRICT COURT

Wilmington, Delaware
January 12, 2017

3

In a November 8, 2016 letter to the Court, Kraft argues that the decision of the Patent
Trial & Appeal Board (PTAB) in a parallel inter partes review (IPR2015-0l 128) "should put to
rest any remaining inequitable conduct defenses asserted by Heartland." (D.I. 420 at 2 of 3) For
reasons including those articulated in response to this letter by Heartland (see D.I. 421 at 2-3 of
4), the Court is not persuaded at this time that the PTAB' s action is a meritorious basis for
granting summary judgment to Kraft.
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