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Intercontinental Great Brands LLC v. Kellogg North America Co.

No Error in Considering Objective Indicia After Finding Prima Facie Obviousness Case

Intercontinental Great Brands LLC v. Kellogg North America Co., 2017 U.S. App. LEXIS 17258 (Fed. Cir. Sept. 7, 2017) (Prost, TARANTO, Reyna (dissenting in part)) (N.D. Ill.: Kennelly) (3 of 5 stars)

Fed Cir affirms summary judgment of invalidity for obviousness, and of no inequitable conduct. The patent at issue related to resealable food packaging, and is held by Intercontinental (referred to in the opinion by its former name, Kraft). The district court did not err in granting summary judgment of obviousness. It properly considered objective indicia of nonobviousness, and properly based its obviousness determination on all the Graham factors. The opinion thus rejects Kraft’s argument that the district court failed to sufficiently consider objective indicia. It also rejects Kraft’s argument that objective indicia must be considered before analyzing whether a skilled artisan would have a reason to combine prior art. The opinion discusses how the district court’s ordering—analyzing objective indicia after considering the content of the art and the existence of a reason to combine—was not erroneous. It also rejects Kraft’s arguments as to the content of the record, and the existence of a motivation to combine based on that record. And it declines to find any error in the district court’s analysis based on the fact that the art being analyzed had previously been considered during reexamination. “[I]n this case the “enhanced burden” proposition [for art considered in reexamination] provides no basis for a different result.” Op. at 24.

The district court also did not err in granting summary judgment of no inequitable conduct during pre-litigation ex parte reexamination. Kellogg’s evidence was insufficient to permit a finding of intent. The issue concerned an article that Kraft had submitted to the PTO that depicted a key piece of prior art. The article described the prior art as not using “conventional wrapping film,” but Kraft had suggested in litigation that this was a misprint. That Kraft did not bring this misprint belief to the PTAB’s attention was not, on its own, sufficient to support a determination of bad intent. Kellogg had not developed evidence that Kraft’s counsel believed it was a misprint, and neither the ex parte requester nor the Examiner had ever raised the issue. “The absence of such a statement indicates that the alleged misprint was not as obvious as Kellogg claims.” Op. at 28.

Dissent-in-part: Judge Reyna believes that the district court “improperly found a prima facie case of obviousness before considering Kraft’s evidence of objective indicia of nonobviousness,” and on that basis would have reversed. Dissent at 2. He also would have reversed the district court’s summary judgment of no infringement, which the court’s opinion did not address.

KEYWORDS: OBVIOUSNESS (YES); OBJECTIVE INDICIA; INEQUITABLE CONDUCT (NO)