DCT
2:18-cv-04810
Anchor Packaging Inc v. Phoenix Packaging Operations LLC
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Anchor Packaging, Inc. (Missouri)
- Defendant: Phoenix Packaging Operations, LLC (Delaware)
- Plaintiff’s Counsel: Stinson Leonard Street LLP
- Case Identification: 2:18-cv-04810, D. Ariz., 12/19/2018
- Venue Allegations: Venue is asserted in the District of Arizona based on the defendant having a "regular and established place of business" in the district—specifically, a manufacturing plant—and having allegedly committed acts of infringement within the district.
- Core Dispute: Plaintiff alleges that Defendant’s polypropylene food tray infringes Plaintiff's design patent covering the ornamental appearance of a similar tray.
- Technical Context: The dispute concerns the ornamental design of high-volume, disposable food packaging, a field where distinctive appearance can be a key market differentiator.
- Key Procedural History: The complaint alleges that prior to Defendant selling the accused product to The Kroger Company, Plaintiff had supplied a "nearly identical" tray to Kroger for the same food product. This allegation frames the dispute not just as one of patent infringement, but as one involving a direct competitor allegedly replacing the patentee with a copycat product.
Case Timeline
| Date | Event |
|---|---|
| 2006-12-21 | '681 Patent Priority Date |
| 2008-06-10 | '681 Patent Issue Date |
| 2018-12-19 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Design Patent No. D570,681 - "Polypropylene Tray"
The Invention Explained
- Problem Addressed: In the market for consumer food packaging, manufacturers seek to differentiate their products (Compl. ¶7). Design patents protect the unique, non-functional, ornamental appearance of an article of manufacture, providing a basis for that differentiation.
- The Patented Solution: The patent protects the specific aesthetic and ornamental appearance of a polypropylene tray (D'681 Patent, Claim). As depicted in the patent's figures, the design is characterized by a combination of features: a generally rectangular shape with rounded corners, a series of recessed scalloped or fluted elements on the inner rim, and vertically ribbed sidewalls (D'681 Patent, FIGS. 2, 8).
- Technical Importance: In the consumer packaging industry, a unique ornamental design can serve as a source identifier and a key point of product differentiation on retail shelves (Compl. ¶7).
Key Claims at a Glance
- The patent asserts a single claim covering "The ornamental design for a polypropylene tray, as shown and described" (D'681 Patent, Claim).
- This single claim protects the overall visual appearance of the tray, which is defined by all ornamental features depicted in Figures 1-15 of the patent.
III. The Accused Instrumentality
Product Identification
- A polypropylene tray manufactured and sold by Phoenix Packaging Operations, LLC (Compl. ¶12).
Functionality and Market Context
- The accused tray is used for food packaging, and the complaint specifically identifies its use by The Kroger Company for its "Meals Made Simple—Homestyle Mashed Potatoes" product (Compl. ¶15). The complaint provides images of the accused tray as used in this commercial packaging (Compl. p. 5, Table 2). The complaint alleges that Phoenix began supplying the accused tray to Kroger after Kroger had previously sourced a "nearly identical" tray from Plaintiff for the same product, positioning the accused product as a direct replacement (Compl. ¶16). To support this, the complaint includes a visual comparison showing the similarity between Plaintiff's own commercial tray and the accused product (Compl. p. 6, Table 3).
IV. Analysis of Infringement Allegations
The standard for infringement of a design patent is whether an "ordinary observer," giving such attention as a purchaser usually gives, would be deceived into purchasing the accused product supposing it to be the patented design. The complaint alleges the designs are "so similar that an ordinary observer would perceive the overall appearance of the two designs as substantially the same" (Compl. ¶13).
Claim Chart Summary
| Patented Design Feature (from D'681 Patent) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| The overall ornamental design for a polypropylene tray, including its generally rectangular shape with rounded corners and a surrounding flange. | The accused product is alleged to embody a visually similar overall shape, including the rounded rectangular form and flange. The complaint provides a side-by-side comparison of the patent's top view drawing with a photograph of the accused product. | ¶14; p. 4, Table 1 | D'681 Patent, FIG. 2 |
| A series of recessed, inwardly-pointing, scalloped ornamental elements arranged around the inner periphery of the tray's upper surface. | The accused product is alleged to include a "substantially the same" series of recessed, scalloped elements around its inner periphery. | ¶13; p. 4, Table 1 | D'681 Patent, FIG. 2 |
| A plurality of vertically oriented, convex ribs along the exterior sidewalls of the tray. | The accused product is alleged to feature visually similar vertical ribbing along its exterior sidewalls, contributing to the overall visual impression. | ¶14; p. 4, Table 1 | D'681 Patent, FIG. 8 |
Identified Points of Contention
- Scope Questions: The primary question is whether the overall visual impression of the accused product is substantially the same as the claimed design. The analysis will focus on the combination of the tray's shape, its inner scalloped border, and its ribbed sides, and whether any minor differences are sufficient to distinguish the two designs in the mind of an ordinary observer.
- Technical Questions: The dispute does not raise technical questions of operation, but rather questions of visual perception. The key evidence will be the visual comparison between the patent figures and the physical accused product. The complaint's allegation that Kroger switched from Plaintiff's "nearly identical" tray to the accused tray may be presented as evidence that the designs are, in fact, substantially similar from a commercial standpoint (Compl. ¶¶ 16, 18).
V. Key Claim Terms for Construction
In design patent litigation, the "claim" is the design itself, as depicted in the drawings. Claim construction focuses on the overall visual impression rather than the definition of textual terms.
- The "Term": The ornamental design for a polypropylene tray "as shown and described."
- Context and Importance: The core of the case is not defining a word, but determining the scope of the patented design as a whole. Practitioners may focus on which specific features are considered ornamental and which are functional, as only the ornamental aspects are protected. The analysis will compare the overall visual effect of the accused product with the patented design, considering the combination of all depicted features.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: A party seeking a broader scope might argue that the claim covers the overall visual gestalt created by the combination of a lipped, rounded-rectangular tray with a scalloped inner rim and ribbed sidewalls. The presence of three distinct embodiments in the patent (e.g., FIGS. 1-5, 6-10, and 11-15) could be used to argue that the protected design is not limited to one exact configuration but encompasses minor variations of the core ornamental concept.
- Evidence for a Narrower Interpretation: A party seeking a narrower scope might argue that the protection is limited to the exact proportions, curvatures, and arrangement of the ornamental features shown in the drawings. They may point to the crowded field of prior art for food trays to argue that the D'681 patent's scope must be narrowly confined to its precise visual details to maintain its validity over what was already known.
VI. Other Allegations
- Indirect Infringement: The complaint does not plead a separate count for indirect infringement. The allegations are focused on direct infringement through Defendant's acts of making, using, importing, offering for sale, and selling the accused product (Compl. ¶¶ 12, 21).
- Willful Infringement: The complaint does not include an explicit allegation of willful infringement. While the prayer for relief requests attorneys' fees, the complaint does not plead facts establishing that Defendant had pre-suit knowledge of the D'681 patent, which is a typical predicate for a willfulness claim (Compl. p. 7, Prayer for Relief ¶F).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of visual comparison: Applying the "ordinary observer" test, are the accused Phoenix Packaging tray and the design claimed in the D'681 patent substantially the same? The court's decision will likely depend on a direct visual assessment, weighing the similarities in the overall shape, inner scalloped rim, and ribbed sidewalls against any minor differences.
- A key contextual question will be the relevance of the alleged business history: How will the court consider the allegation that the accused product was created to directly replace the patentee's "nearly identical" commercial product for a major customer? While the legal test for infringement is objective, this narrative of replacement could influence the perception of similarity and the equities of the case.