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Campbell Soup Co. v. Gamon Plus, Inc.

Reference Suggesting, But Not Depicting, Design Patent Limitation May Serve as Primary in IPR

Campbell Soup Co. v. Gamon Plus, Inc., __ F.3d __, 2019 WL ___ (Fed. Cir. Sept. 26, 2019) (Prost, MOORE, Newman (dissenting)) (PTAB) (2 of 5 stars)

Fed Cir part-affirms, part-vacates IPR decision confirming non-obviousness of Gamon Plus’s design patents relating to ornamentation for gravity-feed dispensers of cylindrical cans. The Board’s determination that one of the cited references (“Linz”) could not serve as a primary reference lacked sufficient support in the record. Citing oral argument, the opinion reasons that the core dispute surrounding Linz had to do with the dimensions of a can that would be used with the Linz design (which Linz did not depict), and not a dispute as to whether the Linz design “is made to hold a cylindrical object, in its display area,” and characterizes the differences between Linz and the designs in Gamon Plus’ design patents as “ever-so-slight.” Op. at 9–10.” In light of those facts, the Board’s finding that Linz is not a proper primary reference is not supported by substantial evidence.” Id. at 10. The Board’s determination that Campbell Soup had not demonstrated obviousness over Linz (alone or in view of other references) is vacated.

The record contained sufficient support for the Board’s determination that another reference (“Samways”) could not serve as a primary reference, and the opinion describes how Samways had substantial differences from Gamon Plus’s design. The determination that Campbell Soup had not demonstrated obviousness over Samways (alone, or in view of Linz) is affirmed.

The opinion also instructs the Board to consider on remand non-instituted grounds, as per SAS, 138 S. Ct. 1348 (2018).

Dissent: Judge Newman would have affirmed. She notes that Linz does not depict the cylindrical can Gamon Plus’s design patents require, and criticizes the majority for analyzing Linz “with judicial insertion of the missing cylindrical object.” Op. at 5. In her view, that approach is incompatible with design patent law.

KEYWORDS: INTER PARTES REVIEW; DESIGN PATENTS; PRIMARY REFERENCE