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Court Reverses JMOL and Reinstates Jury Verdict of Infringement

February 27, 2002

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Last Month at the Federal Circuit - March 2002

Judges: Rader (author), Mayer, and Dyk

In Schreiber Foods, Inc. v. Beatrice Cheese, Inc., No. 00-1303 (Fed. Cir. Feb. 27, 2002) (nonprecedential decision), the Federal Circuit reversed a district court’s order vacating a jury’s verdict in favor of Schreiber Foods, Inc. (“Schreiber”) and remanded for reinstatement of the jury’s verdict for infringement of U.S. Patent Nos. 5,440,860 (“the ‘860 patent”) and 5,701,724 (“the ‘724 patent”). The Court, however, affirmed the district’s court’s finding of no inequitable conduct.

Schreiber brought suit against Beatrice Cheese, Inc. (“Beatrice”) and Kustner Industries, S.A., and others (collectively “Kustner”) for infringement of the ‘860 and ‘724 patents. The claims of the ‘860 and ‘724 patents are directed to a process and apparatus for packaging a “continuous slice” of cheese in a folded web of flattened thermoplastic material. Before trial, the district court had held a Markman hearing to interpret the meaning of the disputed terms “fold” and “continuous slice.” After reviewing the specification and prosecution history of the ‘860 and ‘724 patents, the district court concluded that the term “fold” referred to a flattened web of material having a specific “V-fold,” crosssectional shape and the term “continuous slice” called for a length of flattened cheese without any interruptions or creases.

A jury then found that Beatrice and Kustner had willfully infringed the ‘860 and ‘724 patents. On Kustner’s motion for JMOL, the district court recognized that the accused machines made slices of cheese with creases and did not form a web of flattened material having a V-fold, cross-sectional shape. Since the accused machines could thus not satisfy the district court’s construction of the “fold” and “continuous slice” limitations of the ‘860 and ‘724 patents, the district court granted JMOL and vacated the jury’s verdict. The district court also concluded that the “all-elements” rule precluded a finding of infringement under the DOE.

On appeal, the Federal Circuit held that the district court’s order was based on a misinterpretation of the claim terms “fold” and “continuous slice.” With respect to the term “fold,” the Court noted that Webster’s dictionary defines “fold” as to “lay one part over another part.” During prosecution, Schreiber had specifically deleted the narrower “V-fold” limitation from the ‘860 patent. The Examiner also specifically stated that the specification of the ‘724 patent set forth folding a web in any manner known to one skilled in the art, with Vfolding merely an example of such folding.

With regard to the term “continuous slice,” the Court noted that the ordinary and customary meaning of “continuous” is marked by uninterrupted extension in space, time, or sequence. The district court, the Federal Circuit noted, had incorrectly determined that any crease within a slice of cheese falls outside this definition because the specification did not necessarily preclude any creases in a “continuous slice.” The Court thus concluded that the district court had erred in its construction of the terms “fold” and “continuous slice” by adopting a claim construction that restricted these terms beyond their ordinary and customary meaning. Since a rational jury could find that the accused machines satisfied the ordinary and customary meaning of these claim terms, the Court also reinstated the jury’s verdict of literal infringement.