DCT
2:23-cv-00553
Elkay Plastics Co Inc v. Fresh Group Ltd
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Elkay Plastics Co., Inc. (California)
- Defendant: The Fresh Group, Ltd. (Wisconsin)
- Plaintiff’s Counsel: Fulwider Patton LLP
- Case Identification: 2:23-cv-00553, C.D. Cal., 01/24/2023
- Venue Allegations: Plaintiff Elkay alleges venue is proper because it has an established place of business within the district and has committed acts that Defendant Fresh Group has accused of infringement.
- Core Dispute: Plaintiff seeks a declaratory judgment that its food pouches do not infringe Defendant’s patent related to a gusseted pouch for produce, and further asks the court to find the patent invalid as anticipated or obvious.
- Technical Context: The lawsuit concerns flexible packaging technology, specifically stand-up gusseted pouches used in the food industry for retail sale of consumer products.
- Key Procedural History: The action was precipitated by a demand letter from Fresh Group to Elkay on August 30, 2022, accusing Elkay of patent infringement and demanding it cease the sale of accused food pouches. The complaint alleges that after failed negotiations, Fresh Group issued a final demand, creating a reasonable apprehension of suit and establishing the controversy required for this declaratory judgment action. The complaint’s central invalidity theory is that the patented structure has been known since at least 1968, is commonly referred to as a "DOYEN SEAL," and is the subject of an expired patent.
Case Timeline
| Date | Event |
|---|---|
| 2014-01-16 | '178 Patent Priority Date |
| 2017-05-16 | '178 Patent Issue Date |
| 2022-08-30 | Fresh Group sends demand letter to Elkay |
| 2022-12-19 | Fresh Group sends final demand letter to Elkay |
| 2023-01-24 | Complaint for Declaratory Judgment Filed |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 9,650,178 - “WATERMELON POUCH”, issued May 16, 2017
The Invention Explained
- Problem Addressed: The patent’s background section identifies shortcomings with conventional plastic cling wrap for packaging large, sliced produce like watermelon. It notes that such wrap can be unreliable, non-reusable, difficult to handle, and may "harbor considerably more bacteria than unwrapped watermelon slices" ('178 Patent, col. 1:45-66).
- The Patented Solution: The invention is a gusseted pouch specifically designed to hold a large watermelon slice. The patent describes a structure with a front panel, back panel, and a gusseted floor that creates an "upwardly concave interior volume" to stabilize the curved shape of a melon slice ('178 Patent, col. 2:9-11). Key features include sturdy sidewalls to support the pouch on a flat surface, a re-closable zip-lock seal, a reinforced carrying handle, and a transparent window framed by graphics resembling a watermelon rind ('178 Patent, Abstract).
- Technical Importance: The described pouch aims to provide a more sanitary, stable, convenient, and visually appealing packaging solution for large pre-sliced produce compared to traditional wrapping methods ('178 Patent, col. 2:1-4).
Key Claims at a Glance
- The complaint does not specify which claims were asserted by Defendant Fresh Group, but seeks a declaration of invalidity and non-infringement of the patent generally (Compl. ¶¶ 19, a). The analysis below focuses on the first independent claim.
- Independent Claim 1 recites the following essential elements:
- A melon pouch for holding a slice of melon.
- An enclosure with a front panel and a back panel, each with a straight bottom edge.
- A reinforced handle opening through the front and back panels.
- A gusset with front, back, and side edges.
- The bottom edges of the front and back panels are attached to the front and back edges of the gusset, respectively.
- Specific bonding of the panel and gusset corners "along a bonding line traversing the corners to form a... bonded triangle segment."
- These bonded triangle segments are then bonded to each other along the side edges to form corner attachments.
- The structure is configured such that the corners of the front and back panel extend downward to contact a horizontal surface.
III. The Accused Instrumentality
Product Identification
- Plaintiff Elkay's "#READYFRESH®" line of food pouches and containers (Compl. ¶7).
Functionality and Market Context
- The complaint describes the accused products as "bags and containers for take-out or 'to go' food items" (Compl. ¶8). Specific examples of intended contents include "take-out chicken pieces; whole roasted chickens, ribs, chicken wings, bakery goods, sandwiches, wraps and pizza slices" (Compl. ¶24). Elkay explicitly alleges that it "does not market or sell produce packaging" under its trademark, seeking to distinguish its products from the subject matter of the '178 patent (Compl. ¶25). No probative visual evidence provided in complaint.
IV. Analysis of Infringement Allegations
The complaint seeks a declaratory judgment of non-infringement and does not contain a claim chart or detailed infringement theory from the patentee, Fresh Group. Elkay's non-infringement position appears to be based on the intended use and market for its products. The primary technical dispute articulated in the complaint relates to validity. The following chart outlines the likely points of contention for an infringement analysis based on the text of Claim 1 and the limited information in the complaint.
'178 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| A melon pouch for holding a slice of melon having upwardly extending edible flesh cradled below by a convex rind... | Elkay's products are identified as "#READYFRESH®" pouches and containers for "take-out or 'to go' food items," such as cooked chicken, ribs, and sandwiches. The complaint asserts Elkay does not market packaging for produce. | ¶¶ 7, 8, 24, 25 | col. 10:1-4 |
| a front panel having a top edge, a straight bottom edge... a back panel substantially the same size as the front panel... a gusset having a front edge, a back edge... | Elkay's products are described as "pouches" and "bags." The complaint alleges the structure is a "DOYEN SEAL," which is a type of gusseted pouch. However, it does not provide specific details on the construction of the front panel, back panel, or gusset. | ¶¶ 7, 17-18 | col. 10:7-29 |
| wherein the first front panel corner and the first front gusset corner are bonded along a bonding line traversing the corners to form a first bonded triangle segment... | The complaint does not provide sufficient detail for analysis of this element. It makes no allegations regarding the specific bonding structure of its pouches' corners, instead focusing on the broader argument that the pouch structure is a well-known "DOYEN SEAL." | ¶18 | col. 10:41-49 |
| wherein the first bonded triangle segment is bonded to the third bonded triangle segment along the first side edge to provide a first corner attachment... | The complaint does not provide sufficient detail for analysis of this element. The specific method of forming corner attachments is not described for the accused products. | N/A | col. 10:57-64 |
| wherein the corners of the front panel and back panel extend downward to contact a substantially horizontal surface... | The complaint does not provide sufficient detail for analysis of this element. This describes a stand-up capability common to gusseted pouches, which the accused products may possess, but the complaint is silent on this functional detail. | N/A | col. 10:65 - col. 11:2 |
- Identified Points of Contention:
- Scope Questions: The primary dispute appears to be whether the preamble "A melon pouch for holding a slice of melon" is a limitation on the scope of the claims. This raises the question of whether a general-purpose food pouch, allegedly not intended for melons, can infringe.
- Technical Questions: A central technical question, more relevant to the validity analysis, is whether the claimed "bonded triangle segment" structure is functionally and structurally distinct from the prior art "DOYEN SEAL" that Elkay alleges has been in public use for decades (Compl. ¶17-18). The infringement analysis will turn on whether Elkay's "DOYEN SEAL" pouches contain this specific claimed structure.
V. Key Claim Terms for Construction
The Term: "melon pouch"
- Context and Importance: This term appears in the preamble of independent claim 1. Its construction is critical because if the court finds the term to be limiting, Elkay may have a straightforward non-infringement argument by showing its products are marketed and used for other foods, such as cooked chicken and sandwiches, not melons (Compl. ¶24-25).
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The patent's background describes the field as "fruit and vegetable produce packaging" generally ('178 Patent, col. 1:11-12), which could suggest the invention has applicability beyond just watermelons.
- Evidence for a Narrower Interpretation: The patent title is "WATERMELON POUCH." The abstract focuses exclusively on a "watermelon pouch designed with a gusseted floor to accommodate a large watermelon slice" ('178 Patent, Abstract). The claims repeatedly refer to a "slice of melon" and its physical properties, such as the "convex rind" ('178 Patent, col. 10:3), strongly suggesting the pouch was designed for and is limited to this specific purpose.
The Term: "bonded triangle segment"
- Context and Importance: This term describes the specific corner structure of the pouch and appears to be a key element intended to distinguish the invention from prior art. Practitioners may focus on this term because Elkay’s invalidity argument hinges on equating the patented invention with a standard "DOYEN SEAL" pouch (Compl. ¶17). The definition of this term will determine if the "DOYEN SEAL" falls within the claim scope and, therefore, whether it constitutes anticipating prior art.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The claim language describes the segment as being formed by bonding a panel corner and a gusset corner "along a bonding line traversing the corners" ('178 Patent, col. 10:41-45). This functional language could potentially be read to cover various methods of sealing a gusseted corner.
- Evidence for a Narrower Interpretation: The specification provides a highly detailed description of how these segments are formed by bonding along specific diagonal lines (106, 108, 110, 112) as depicted in Figures 7B and 7C ('178 Patent, col. 8:19-30). This suggests the term is not generic but refers to the specific triangular sealed-off corner structure shown in the drawings, which provides stability.
VI. Other Allegations
- Indirect Infringement: The complaint makes no allegations regarding indirect infringement.
- Willful Infringement: The complaint makes no allegations regarding willfulness. However, it affirmatively pleads facts that would support a patentee's future claim for willfulness by establishing Elkay's pre-suit knowledge of the '178 patent as of the August 30, 2022 demand letter (Compl. ¶10).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of validity: Does the "DOYEN SEAL" pouch structure, which the complaint alleges has been known and used since 1968 and is the subject of expired U.S. Patent No. 3,380,646, anticipate or render obvious the '178 patent’s claims, particularly the limitation requiring "bonded triangle segments"?
- A dispositive threshold question will be one of claim scope: Is the preamble term "melon pouch" a substantive limitation on the claims? If so, the case may turn on whether Elkay's pouches, marketed for prepared foods like cooked chicken, can be found to infringe claims directed to packaging for a "slice of melon."
- Finally, a key evidentiary question for infringement will be a structural comparison: Assuming the preamble is not limiting, do Elkay’s accused pouches, which it characterizes as standard "DOYEN SEAL" bags, actually incorporate the specific "bonded triangle segment" corner construction required by the asserted claims? The complaint provides no technical detail on this point.