Graham Packaging Co LP v. Ring Container Tech LLC

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Graham Packaging Company, L.P. (Delaware)
  • Defendant: Ring Container Technologies, LLC (Tennessee)
  • Plaintiff’s Counsel: English, Lucas, Priest & Owsley, LLP; Armstrong Teasdale LLP
• Case Identification: Graham Packaging Company, L.P. v. Ring Container Technologies, LLC, 3:23-cv-00110, W.D. Ky., 03/08/2023
• Venue Allegations: Venue is alleged to be proper in the Western District of Kentucky because Defendant maintains a regular and established place of business in Louisville, Kentucky, where it has manufactured and sold the accused products since at least December 2018.
• Core Dispute: Plaintiff alleges that Defendant’s BarrierGuard® OxygenSmart™ containers infringe a patent related to plastic compositions that scavenge oxygen without requiring a lengthy activation period.
• Technical Context: The technology involves specialized polymer chemistry for food and beverage packaging, designed to prevent spoilage by actively removing oxygen from within the container, thereby increasing product shelf-life.
• Key Procedural History: The complaint alleges that a former lead engineer for the Plaintiff, who worked on the development of the patented technology, joined the Defendant and assisted in developing the accused products. Plaintiff also references a pre-suit notice letter sent to Defendant, which allegedly went unanswered.

Case Timeline

Date	Event
2014-11-07	U.S. Patent No. 11,345,809 Priority Date
2016-01-28	Key employee, Paul Vincent Kelley, ends employment with Plaintiff
2018-12-01	Defendant begins producing accused products in Louisville, KY
2022-05-31	U.S. Patent No. 11,345,809 issues
2023-02-08	Plaintiff sends pre-suit notice letter to Defendant
2023-03-08	Complaint Filed

II. Technology and Patent(s)-in-Suit Analysis

• Patent Identification: U.S. Patent No. 11,345,809, "Oxygen Scavenging Compositions Requiring No Induction Period," issued May 31, 2022.

The Invention Explained

• Problem Addressed: The patent describes a problem with prior art oxygen-scavenging plastic containers, which required a lengthy "induction period" of days or weeks for the scavenging chemistry to become active, creating significant logistical inefficiencies for food and beverage packagers (Compl. ¶3; ’809 Patent, col. 2:1-12). The patent identifies that impurities common in polyester production, such as antimony, can inhibit the scavenging reaction and contribute to this delay (’809 Patent, col. 3:51-65).
• The Patented Solution: The invention is a polymer composition that provides immediate oxygen scavenging. It achieves this by combining three key components: (1) a polyester base polymer, such as polyethylene terephthalate (PET), that is "substantially free of antimony"; (2) an "oxidizable polyether-based additive" that reacts with oxygen; and (3) a "transition metal catalyst" (e.g., cobalt) that promotes the reaction (’809 Patent, Abstract; col. 2:29-33). By removing the inhibiting antimony, the catalyst can immediately facilitate the oxygen-scavenging function of the additive, eliminating the induction period (’809 Patent, col. 3:56-65).
• Technical Importance: This technology enables the production of oxygen-scavenging containers that can be filled immediately after manufacture, streamlining the supply chain for oxygen-sensitive products (Compl. ¶4).

Key Claims at a Glance

• The complaint asserts infringement of independent claims 1 and 21, as well as dependent claims 2-8, 17, and 22-28 (Compl. ¶18).
• Independent Claim 1 requires:
  • A bottle with a wall made from a composition comprising:
  • Polyethylene terephthalate (PET) that is "substantially free of antimony and substantially free of phosphorous";
  • An "oxidizable polyether-based additive";
  • A "transition metal catalyst" that "comprises cobalt"; and
  • The wall must have an oxygen permeability of "not more than about 3.0 cm³ mm / (m² atm day) immediately after the package is formed."
• Independent Claim 21 is similar to Claim 1 but only requires the PET to be "substantially free of antimony" without the additional "substantially free of phosphorous" limitation.

III. The Accused Instrumentality

Product Identification

• The complaint identifies Ring Container’s "BarrierGuard® OxygenSmart™ containers" as the Accused Products (Compl. ¶18).

Functionality and Market Context

• The Accused Products are containers used for oxygen-sensitive foods, such as Hunt's Ketchup bottles manufactured for Conagra Brands (Compl. ¶13, ¶19). The complaint alleges these containers feature an "oxygen barrier layer" that contains the infringing composition (Compl. ¶27).
• Defendant’s marketing materials are cited, which claim the technology can "block[] or absorb[] up to 30% more oxygen versus competitive barrier systems" (Compl. ¶33). The complaint includes a marketing graphic from Defendant's website, which positions the "Barrier Guard OxygenSmart" technology as the "Best" option for oxygen protection (Compl. ¶33, Image).

IV. Analysis of Infringement Allegations

’809 Patent Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
a bottle comprising a wall comprising at least one layer	The Accused Products are bottles having walls.	¶25, ¶26	col. 21:6-8
said one layer comprising a composition comprising polyethylene terephthalate [‘PET’]	Nuclear magnetic resonance (NMR) analysis of the Accused Product's oxygen barrier layer allegedly shows it contains PET. The complaint provides an NMR spectrum overlay comparing the accused layer to a pure PET standard.	¶27	col. 21:9-10
that is substantially free of antimony and substantially free of phosphorous	An elemental scan of the Accused Product's barrier layer allegedly shows it contains at most 1 part per million (ppm) of antimony and 8 ppm of phosphorus. The complaint provides a periodic table graphic displaying the elemental concentrations.	¶28	col. 21:10-11
an oxidizable polyether-based additive	NMR and high-performance liquid chromatography-mass spectrometry (HPLC-MS) analyses allegedly indicate the presence of polytetramethylene ether glycol (PTMEG) in the barrier layer. The complaint provides spectra from this analysis comparing the accused layer to a PTMEG standard.	¶29, ¶30, ¶31, ¶32	col. 21:12
a transition metal catalyst, wherein the transition metal catalyst comprises cobalt	The elemental scan of the barrier layer allegedly indicates the presence of 24 ppm of cobalt.	¶34, ¶35	col. 21:13-14
wherein the wall has an oxygen permeability of not more than about 3.0 cm³ mm / (m² atm day) immediately after the package is formed	This property is alleged to be satisfied as an inherent result of the barrier layer's composition. The complaint cites Defendant's marketing materials describing the product as an effective oxygen barrier.	¶36, ¶37	col. 21:14-17

• Identified Points of Contention:
  • Scope Questions: A potential dispute may arise over the meaning of "substantially free of antimony." While the complaint alleges a level of 1 ppm, which aligns with the patent’s "most preferrably" disclosed range of 0-2 ppm (’809 Patent, col. 2:39-40), the defendant may argue for a different construction or that its own process does not meet the term's requirements in the context of the prior art.
  • Technical Questions: The complaint alleges the final "oxygen permeability" limitation based on the "inherent properties" of the identified composition and on marketing claims, rather than providing direct test results for the accused product (Compl. ¶37). A key question is whether Plaintiff can prove this specific quantitative performance metric, particularly its existence "immediately after the package is formed," without direct empirical evidence from the accused product itself.

V. Key Claim Terms for Construction

• The Term: "substantially free of antimony"

  • Context and Importance: This term is central to the patent's novelty, as the reduction of antimony is the stated mechanism for eliminating the problematic "induction period." The outcome of the infringement analysis depends heavily on whether the amount of antimony in the accused product (allegedly 1 ppm) falls within the scope of this term.
  • Intrinsic Evidence for a Broader Interpretation: The specification provides a tiered set of definitions, stating the composition "preferably contains less than 100 ppm of antimony, more preferably less than 50 ppm of antimony, even more preferably less than 10 ppm" (’809 Patent, col. 2:35-39). This language could support a construction that is not limited to near-zero amounts.
  • Intrinsic Evidence for a Narrower Interpretation: The same passage states that the composition "most preferably contains between about 0 ppm and about 2 ppm of antimony" (’809 Patent, col. 2:39-40). A party could argue that this "most preferred" range represents the true inventive concept and that "substantially free" should be construed more narrowly in line with this disclosure.

• The Term: "immediately after the package is formed"

  • Context and Importance: This phrase captures the core commercial benefit of the invention—the elimination of the induction period. Its construction is critical for determining whether infringement occurs at the precise time required by the claim language. Practitioners may focus on this term because proving a technical property at a specific, transient moment ("immediately after") can present a significant evidentiary challenge.
  • Intrinsic Evidence for a Broader Interpretation: The patent contrasts its "immediate" performance with prior art induction periods of "up to four weeks" (’809 Patent, col. 2:6-8), suggesting "immediately" should be understood in a practical, commercial sense (e.g., within hours or the same production day) rather than instantaneously.
  • Intrinsic Evidence for a Narrower Interpretation: The patent states that "in practical terms," the claimed permeability is "achievable immediately after the container is formed" (’809 Patent, col. 10:58-61). A defendant could argue this reinforces a literal interpretation requiring the property to exist at the moment of formation, without any delay.

VI. Other Allegations

• Indirect Infringement: The complaint alleges active inducement, asserting that Ring Container intentionally encourages infringement by its partners and customers, such as Conagra Brands (Compl. ¶19). The inducement is alleged to occur when Ring sells the Accused Products to customers who then use them for their intended purpose, such as by filling them with oxygen-sensitive products (Compl. ¶19).
• Willful Infringement: The willfulness allegation is based on alleged knowledge from two sources. First, it is alleged that a former Graham Packaging lead engineer who worked on the patented technology was hired by Ring Container and assisted in developing the accused products, thereby providing Ring with pre-suit knowledge of the technology and potential infringement (Compl. ¶¶38-44). Second, the complaint alleges Ring Container gained explicit knowledge of the patent from a certified letter sent on February 8, 2023, and continued its allegedly infringing conduct thereafter (Compl. ¶¶45-47).

VII. Analyst’s Conclusion: Key Questions for the Case

• A core issue will be one of definitional scope: can the term "substantially free of antimony", which the patent defines with multiple preferred ranges, be construed to unambiguously cover the 1 ppm of antimony allegedly present in the accused product, or will its meaning be a central point of dispute?
• A key evidentiary question will be one of functional proof: can the plaintiff demonstrate that the accused container wall possesses an oxygen permeability below the specific numerical threshold claimed "immediately after the package is formed," or will the lack of direct, time-sensitive test data in the complaint create a significant hurdle to proving this element of infringement?
• A significant factual question will concern imputed knowledge and intent: to what extent can the knowledge of a single, former employee of the plaintiff be imputed to the defendant to establish the subjective recklessness required for pre-suit willful infringement and potential enhanced damages?