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KIM v. CONAGRA FOODS

May 22, 2003

YOON JA KIM, PLAINTIFF, COUNTERDEFENDANT,
v.
CONAGRA FOODS, INC., A NEBRASKA CORPORATION, DEFENDANT, COUNTERCLAIMANT.



The opinion of the court was delivered by: William T. Hart, Senior District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Yoon Ja Kim is the holder of U.S. Patent No. Re. 36,355 (the "`355 Patent"), which issued on October 26, 1999 as a reissue of U.S. Patent No. 5,510,129 (the "`129 Patent"). The `355 Patent is a patent for a potassium bromate replacer composition. Potassium bromate is an oxidizing agent for bread dough, but its use became less common after it was discovered to have caused cancer in laboratory animals. Plaintiff's composition is to be used as a substitute for potassium bromate. Plaintiff alleges that defendant ConAgra Foods, Inc. infringes her patent by using the composition in producing certain types of Healthy Choice brand breads, specifically Natural Wheat, SevenGrain, and Whole Grain. She contends the bread mixes used in producing these breads violate the patent.*fn1 Defendant has counterclaimed for a declaration that the `355 patent is invalid and/or that defendant has not infringed the `355 patent. Presently pending is defendant's motion for summary judgment.*fn2

On a motion for summary judgment,*fn3 the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant.*fn4 Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002); Hilt-Dyson v. City of Chicago, 282 F.3d 456, 462 (7th Cir.), cert. denied, 123 S.Ct. 97 (2002); Schneiker v. Fortis Insurance Co., 200 F.3d 1055, 1057 (7th Cir. 2000); Augustine Medical Inc. v. Progressive Dynamics Inc., 194 F.3d 1367, 1370 (Fed. Cir. 1999). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001); Vivid Technologies, Inc. v. American Science & Engineering, Inc., 200 F.3d 795, 806-07 (Fed. Cir. 1999); Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999). The nonmovant, however, must make a showing sufficient to establish any essential element for which she will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Billings v. Madison Metropolitan School District,

259 F.3d 807, 812 (7th Cir. 2001). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 236 (7th Cir.), cert. denied, 515 U.S. 1104 (1995); Paragon Podiatry Laboratory, Inc. v. KLM Laboratories, Inc., 984 F.2d 1182, 1191 (Fed. Cir. 1993); Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852 (1988). As the Seventh Circuit has summarized:

The party moving for summary judgment carries the initial burden of production to identify "those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Logan v. Commercial Union Ins. Co., 96 F.3d 971, 978 (7th Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citation and internal quotation omitted)). The moving party may discharge this burden by "`showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Once the moving party satisfies this burden, the nonmovant must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The nonmovant must do more, however, than demonstrate some factual disagreement between the parties; the issue must be `material.'" Logan, 96 F.3d at 978. "Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute." Id. (citation omitted). In determining whether the nonmovant has identified a "material" issue of fact for trial, we are guided by the applicable substantive law; "[o]nly disputes that could affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 298 (7th Cir. 1996) (citation omitted). Furthermore, a factual dispute is "genuine" for summary judgment purposes only when there is "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Hence, a "metaphysical doubt" regarding the existence of a genuine fact issue is not enough to stave off summary judgment, and "the nonmovant fails to demonstrate a genuine issue for trial `where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. . . .'" Logan, 96 F.3d at 978 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
Outlaw, 259 F.3d at 837.

Defendant raises various grounds on summary judgment. Defendant contends it cannot be liable for infringement because it does not manufacture or sell the accused breads, but instead licenses other entities to use its trademarks for breads that the other entities manufacture and sell. Defendant contends the `355 patent is invalid because at least one accused bread was on sale more than one year prior to the effective filing date of the patent application and because the written description in the `355 patent is deficient. Defendant also contends that the accused breads do not infringe the `355 patent because no bromate replacer is used and the `355 patent does not apply to baked bread, bread mix, or dough that is used in making the accused breads.

Resolving all genuine factual disputes and drawing all reasonable inferences in plaintiff's favor, the facts assumed to be true for purposes of defendant's summary judgment motion are as follows. The `355 Patent is entitled "Potassium Bromate Replacer Composition." Plaintiff contends claims 5 through 8 and 10 are being infringed. Claim 5 is directed to a slow acting ascorbic acid composition as a potassium bromate replacer and is referred to as "Replacer I." Claims 6 through 8 are dependent on claim 5. Claim 10 includes yeast food and is referred to as "Replacer II."

Claim 5 reads:

5. A potassium bromate replacer composition consisting essentially of, by weight:
(a) about 0.001 to 0.03 parts ascorbic acid as an oxidant per 100 parts flour,
(b) about 0.015 to 0.2 part food acid per 100 parts flour, said food acid selected from the group consisting of acetic acid, citric acid, fumaric acid, lactic acid, malic acid, oxalic acid, phosphoric acid, succinic acid, tartaric acid, fruit juice, fruit juice concentrate, vinegar, wine, and mixtures thereof, and
(c) flour.

Claim 10 reads:

10. A potassium bromate replacer composition consisting essentially of, by weight:
(a) about 0.001 to 0.03 parts ascorbic acid as an oxidant per 100 parts flour,
(b) about 0.015 to 0.2 part food acid per 100 parts flour, said food acid selected from the group consisting of acetic acid, citric acid, fumaric acid, lactic acid, malic acid, oxalic acid, phosphoric acid, succinic acid, tartaric acid, fruit juice, fruit juice concentrate, vinegar, wine, and mixtures thereof,
(c) about 0.5 parts yeast food per 100 parts flour, and

(d) flour.

Defendant itself does not make, use, sell, offer for sale, or import any of the accused breads. Defendant licenses other companies to produce the accused breads and distribute the breads to retail stores for sale to consumers under the ConAgra and Healthy Choice trademark. The breads are to be produced in accordance with formula sheets provided by defendant. Defendant receives license fees from the actual manufacturers.

Breads are made by mixing ingredients to form dough, proofing the dough, and baking the dough. In the accused breads, the dough is prepared in two stages. First, a sponge dough is formed by mixing flour, water, yeast, emulsifiers, yeast food, ascorbic acid, and sometimes other ingredients. The sponge dough is allowed to partially rise and then additional flour, other dry ingredients, and water are combined to form the dough before proofing. Dough is physically and chemically different from flour and the other ingredients in the mix and the final bread product is also physically and chemically different from the dough. As to all three of the accused breads, yeast and flour are included in the ingredients for the sponge dough. Ascorbic acid and a food acid are among the ingredients added in the second stage of preparing the dough. However, flour, ascorbic acid, food acid, and yeast (nor flour, ascorbic acid, and food acid alone) are not separately mixed ...


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