United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge.
Intercontinental Great Brands LLC (IGB) has sued defendants Kellogg North America and related entities (collectively Kellogg) for patent infringement. IGB contends that Kellogg manufactures products that infringe U.S. patent number 6, 918, 532 B2 (the '532 patent), in particular Claims 1, 3, 4, 6, 12, 13, 15-17, 23, 24, 26-37, 39-45 of that patent. The parties have submitted briefs regarding the construction of certain terms in the claims. The Court held a claim construction hearing, followed by supplemental briefing. The Court rules on the construction of disputed terms as set forth below.
The 532 patent covers a "Resealable Food Container." It was issued on July 19, 2005. The listed inventors are five individuals from New Jersey, who first filed the application for the patent in April 2003. The patent lists IGB's parent company Kraft Foods Holdings, Inc. as the patent's exclusive licensee.
The Macfarlane Group Sweden, also known as Reseal-It, works with Fuji Packaging GmbH to produce re-sealable packages. In October 2007, Regath HB, a patent holding company for Macfarlane, requested an ex parte reexamination of the '532 patent. The United States Patent and Trademark Office (PTO) granted the request. In April 2010, the PTO issued a rejection of the 532 patent claims. IGB appealed the decision to the Board of Patent Appeals (BPA). In August 2008, the BPA reversed, finding that all claims of the 532 patent were patentable. On October 25, 2011, the PTO issued a reexamination certificate that left the original claims in the 532 patent intact and added a number of new claims.
The 532 patent describes a container that protects food products and helps keep them fresh. The container enables a consumer to select a food item from the container through a resealable panel at the top. The summary of the invention section of the 532 patent's specification states that "the purpose of the present invention is to provide a new and improved container for food products such as rigid food articles, for example cookies and the like...." 532 Patent, col. 1:40-41.
The 532 patent includes sixty-seven claims, with claims 26-67 having been added after the reexamination proceedings. Three of the claims that IGB asserts in this case are independent claims, specifically, claims 1, 13, and 34. Three of the disputed terms are contained in one or more of these claims. The Court sets out claims 1 and 34 in their entirety, highlighting the disputed language:
1. A polygonal shaped food container comprising:
a frame defining the polygonal shape of the container, said container having a top, a bottom and sides connecting the top and bottom, the frame containing a food product comprised of discrete food articles;
a wrapper surrounding said frame, said wrapper forming the top sides and bottom of the container;
said top having an access opening sufficiently large to provide hand access to substantially all of the discrete food articles contained within the frame, such that substantially any one of the discrete food articles can be accessed and removed individually through said access opening; and
a sealing layer, adhesively sealed to said top around said opening, said sealing layer including a starter portion located near a side of the top which can be grasped by a user, said sealing layer being releasable when said starter portion is pulled in a direction away from said side to in turn pull and thereby release at least a portion of said sealing layer to provide the hand access to said top access opening and reclosable against said top to seal said opening when said sealing layer is moved back against the said top.
'532 Patent, col. 5:29-51 (emphasis added). Claim 13 is virtually identical to claim 1; it describes a rectangular food container rather than a polygonal container and makes a small number of corresponding changes. Claim 34, which is one ...