May 21, 2007

I will periodically post case citations from the Federal Circuit along with the date of the opinion/order and a brief list of the legal topics discussed therein (specifically those with additional embedded case law citations). My goal is to post new cases on a weekly basis. This posting covers the first two patent cases that were appealed from the district court level and decided by the Federal Circuit during the 20th calendar week of 2007. All opinions are precedential unless otherwise indicated.

General Mills, Inc. v. Kraft Foods Global, Inc. (05/16/2007): appeal of final judgment dismissing patent infringement claims as being barred by covenant not to sue granted to defendant’s predecessor-in-interest and cross-appeal challenging the decision to treat the counterclaim as abandoned after plaintiff’s filing of an amended complaint (both affirmed); discussion of two patent related to rolled fruit items (U.S. Patent No. 5,284,667, entitled “Rolled Food Item Fabricating Methods,” and U.S. Patent No. 5,723,163, entitled “Rolled Food Item”); patentee sued predecessor-in-interest (Farley) for patent infringement, which was eventually settled, and Kraft subsequently succeeded Farley’s business interests; Kraft the sold its assets in the Farley business to Catterton Partners in 2002, and sold the remainder of its rolled food business to Kellogg in 2005; current lawsuit addresses infringement by Kraft between the Catterton and Kellogg transactions; settlement agreement construed under state law instead of federal law; “no basis for concluding that Kraft’s rights under the agreement were terminated by operation of law at the time of the Catterton transaction; Kraft entitled to protection of Farley’s covenant not to sue at least until the Kellogg transaction, which was the time the allegedly infringing activities ceased; Kraft deemed to have abandoned its counterclaim because it did not “file an answer and counterclaim or take any such other action as may have been permitted to protect its interests”

Hildebrand v. Steck Manufacturing Company, Inc., et al. (05/17/2007, non-precedential): appeal of judgment based on jury verdict for non-willful patent infringement and cross-appeal from District Court’s refusal to rule as a matter of law that the patent-in-suit was anticipated and obvious in light of the prior art (affirmed); discussion of patent related to a removal device adapted for the removal of difficult to remove threaded connecting devices (U.S. Patent No. 5,737,981, entitled “Removal device for threaded connecting devices”); patent-in-suit not anticipated by single patent references as the prior art patent discloses a device to screw in bolts and the patent-in-suit discloses a device to remove bolts; defendant did not carry the burden to convince the jury by clear and convincing evidence that the patent-in-suit was obvious; this is short and fact-specific non-precedential opinion


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Mark Reichel
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I am a patent attorney with Reichel IP LLC, where I concentrate my practice on patent drafting and prosecution, trademarks, and general intellectual property matters. I currently focus on the preparation and prosecution of medical device and other life sciences patent applications, and being actively involved in a number of local not-for-profit organizations.

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