Docket Nos. 2012-1463-, -1501
RADER, REYNA, DAVIS (DJ)
August 6, 2013
Brief summary: DC claim construction, anticipation and obviousness findings were affirmed.
Summary: Cheese Systems, Inc. (CSI) (which brought a DJ action) appealed DC grant of SJ to Tetra Pak Cheese that CSI infringed under the DOE and did not show TPC’s patent (as exclusive licensee) relating to commercial horizontally-oriented cheese-making vats (which also include “counter-rotating” agitator panels) was invalid. A permanent injunction against CSI was also entered. In this appeal, CSI argued that its machine “does not have cutting panels that meet the ‘generally common plane’ limitation”, “that its paddles do not satisfy the ‘agitator panel’ limitation” and its “vat does not satisfy the ‘horizontally disposed axes’ limitation” and that the patent is invalid as anticipated and obvious. The DC concluded that a “generally common plane” referred to stirring blades that were “on the whole flat” but the FC found this definition to be too restrictive but affirmed as to literal infringement of this limitation. The FC panel also agreed with the DC definition of the “agitator panel” and affirmed literal infringement of this limitation. Similarly, the FC panel agreed with the DC decision regarding the “horizontally disposed axes” limitation (skilled artisan “would distinguish horizontal from vertical cheese vats in comparative terms, rather than requiring horizontal vats to be precisely horizontal” as argued by CSI). CSI also argued that the counter-rotating agitator panels were in the prior art. The DC found, and the FC agreed, that even though one of the prior art patents stated that “agitators normally rotate co-directionally but can be arranged for counter rotation where specific production criteria demand it…these patents are not directed solely to cheese production, but instead include other food products” (“Without a clear and unambiguous teaching, a jury could only speculate, hardly a compelling case for anticipation.”). Regarding obviousness, the FC panel noted that “[a]mong the difficult challengers of applying the doctrine of obviousness is avoidance of even a hint of hindsight” and that “objective evidence operates as a beneficial check on hindsight” (citing Power Integrations, Inc. (FC 2013). None of the references and combinations thereof (or expert report that was partially excluded) asserted by CSI were found to render TPC’s patents invalid for obviousness. Thus, the DC decision was affirmed.