DCT
2:18-cv-04778
Topps Co Inc v. Lapeyrouse
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: The Topps Company, Inc. (Delaware)
- Defendant: Paul Joseph Lapeyrouse Jr. d/b/a Funtime Candy & Toy (Louisiana), and Funtime (Xiamen) Candy Co., Ltd. (China)
- Plaintiff’s Counsel: Foley & Lardner LLP
- Case Identification: 2:18-cv-04778, E.D. La., 05/09/2018
- Venue Allegations: Venue is alleged to be proper because Defendant Lapeyrouse is a resident of the district and Defendant Funtime is not a resident of the United States.
- Core Dispute: Plaintiff alleges that Defendants’ "SQUEEZY SQUIRT POP" candy product infringes a patent covering Plaintiff's "JUICY DROP" brand candy.
- Technical Context: The technology relates to interactive confectionery products that combine a solid candy with a user-dispensed liquid flavoring.
- Key Procedural History: The complaint alleges that in July 2016, Plaintiff initiated a patent and trade dress infringement action against Koko's Confectionery & Novelty, an alleged partner of the Defendants, regarding the same accused product. Plaintiff alleges Defendants were made aware of this prior litigation and a related notice letter, which may support the claim for willful infringement.
Case Timeline
| Date | Event |
|---|---|
| 2001-12-20 | ’316 Patent Priority Date (Application Filing) |
| 2003-05-01 | Plaintiff's "JUICY DROP" product first introduced (approx.) |
| 2003-12-09 | ’316 Patent Issued |
| 2016-07-26 | Topps sent notice letter to Koko's (approx.) |
| 2018-05-09 | Complaint Filed |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 6,660,316 - Packaged Candy Product, Issued Dec. 9, 2003
The Invention Explained
- Problem Addressed: The patent describes a market for candy products that combine a solid candy with a liquid component, allowing a consumer to "adjust the taste of the candy to his or her preference by dispensing varying amounts of liquid onto the candy" (Compl. ¶23; ’316 Patent, col. 1:11-15). The problem is how to package these two components in a convenient and functional way.
- The Patented Solution: The invention is a packaged candy product with a two-part housing. The lower part holds a piece of hard candy on a removable holder, which also seals the chamber (’316 Patent, col. 2:60-64). The upper part contains a separate, compressible bottle of flavored liquid (’316 Patent, col. 2:9-15). Crucially, the housing has openings that allow a user to squeeze the bottle directly, dispensing the liquid onto the candy after the candy has been removed from the housing (’316 Patent, col. 2:34-46). Figure 3 of the patent illustrates this intended use.
- Technical Importance: This design allows a user to repeatedly apply a liquid (e.g., sour) to a solid candy (e.g., sweet), creating an interactive and customizable taste experience (’316 Patent, col. 2:47-52).
Key Claims at a Glance
- The complaint asserts infringement of at least Claim 1 (Compl. ¶24).
- The essential elements of independent Claim 1 are:
- A housing including a front face and a back face, said housing defining an upper chamber and a lower chamber;
- A candy holder for supporting a piece of candy and including a handle at its lower end, said candy holder being receivable within said lower chamber to close the chamber and being selectively removable therefrom;
- A piece of hard candy supported by said candy holder;
- A compressible bottle within the upper chamber of said housing, said bottle containing a flavored liquid;
- Said bottle and said housing being configured to allow said liquid to be expelled from the bottle, at least two sides of said bottle being directly accessible through said housing such that a user can apply pressure directly to said bottle to dispense the flavored liquid on the hard candy when said hard candy supported on said candy holder has been removed from said housing.
- The complaint expressly reserves the right to assert additional claims (Compl. ¶30).
III. The Accused Instrumentality
Product Identification
- The accused products are the "SQUEEZY SQUIRT POP" device and substantially similar products (collectively, the "Infringing ’316 Products") (Compl. ¶30).
Functionality and Market Context
- The complaint alleges the SQUEEZY SQUIRT POP is a "low cost knock-off" of Topps' patented Juicy Drop lollipop (Compl. ¶25).
- Functionally, the accused product is alleged to possess a housing with an upper and lower chamber, a removable hard candy on a holder that fits into the lower chamber, and a compressible bottle of liquid in the upper chamber (Compl. ¶¶32-34).
- The complaint includes an annotated photograph of the accused product, labeled "Figure A," which identifies its alleged components, including the "Housing," "Upper Chamber," "Lower Chamber," "Candy Holder," and "Compressible Bottle" (Compl. p. 8, Figure A). This visual depicts a product with a two-chamber structure where the candy holder is separated from the liquid container.
- The complaint alleges the product is manufactured in China for importation and sale in the United States in concert with Koko's Confectionery & Novelty (Compl. ¶27).
IV. Analysis of Infringement Allegations
’316 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| a housing including a front face and a back face, said housing defining an upper chamber and a lower chamber; | The accused products have a housing with a front and back face that defines an upper and lower chamber. | ¶32 | col. 2:56-58 |
| a candy holder for supporting a piece of candy and including a handle at its lower end, said candy holder being receivable within said lower chamber to close the chamber and being selectively removable therefrom; | The accused products have a candy holder with a handle that supports a piece of candy and is removably received within the lower chamber to close it. | ¶33 | col. 2:60-64 |
| a piece of hard candy supported by said candy holder; | The accused products have a piece of hard candy supported by the candy holder. | ¶33 | col. 2:65 |
| a compressible bottle within the upper chamber of said housing, said bottle containing a flavored liquid... said bottle and said housing being configured to allow said liquid to be expelled from the bottle, at least two sides of said bottle being directly accessible through said housing such that a user can apply pressure directly to said bottle to dispense the flavored liquid on the hard candy when said hard candy supported on said candy holder has been removed from said housing. | The accused products have a compressible bottle of flavored liquid in the upper chamber, with two sides of the bottle being directly accessible through the housing to allow a user to dispense liquid onto the removed hard candy. | ¶34 | col. 2:34-46 |
- Identified Points of Contention:
- Scope Questions: A potential dispute may arise over the term "housing". The patent's preferred embodiment describes a two-piece housing comprising a "shell 10 and a rear cover 12" (’316 Patent, col. 2:57-58). The court may need to determine if Claim 1, which does not explicitly require two pieces, reads on a housing constructed as a single, unitary piece, should the accused product be so constructed.
- Technical Questions: The infringement analysis will likely focus on the limitation requiring "at least two sides of said bottle being directly accessible through said housing." This raises the question of what evidence demonstrates that a user's pressure is applied "directly" to the bottle through openings, as opposed to indirectly by squeezing a flexible portion of the housing itself. The visual evidence provided in the complaint's Figure A purports to show a "Compressible Bottle" inside a more rigid "Housing," which would support the plaintiff's allegation.
V. Key Claim Terms for Construction
- The Term: "directly accessible through said housing"
- Context and Importance: This term is central to the point of novelty. The patent distinguishes itself by allowing a user to squeeze the liquid bottle itself, rather than manipulating another mechanism. The infringement case hinges on whether the accused product's design allows for this specific type of "direct" access. Practitioners may focus on this term because its construction will determine whether a wide or narrow range of interactive candy designs infringe.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The claim language itself does not specify the size or shape of the access points, only that access is "through said housing." This could be argued to cover any configuration where the bottle is the component being compressed, regardless of the size of the openings.
- Evidence for a Narrower Interpretation: The specification describes specific "openings 40 and 42" in the housing that expose the bottle for compression (’316 Patent, col. 2:34-39). A defendant might argue that "directly accessible" requires discrete openings that expose the bottle surface, rather than, for example, a housing made of a thin, flexible material that transmits pressure to the bottle within. The patent also notes that "projecting portions" of the bottle can "extend through the openings" (’316 Patent, col. 2:38-39), suggesting a specific physical arrangement.
VI. Other Allegations
- Indirect Infringement: The complaint alleges that Defendants induced infringement by "actively encouraging others to make, use, offer for sale, sell, and/or import" the accused products by marketing, promoting, and advertising them (Compl. ¶42). The allegation rests on the assertion that Defendants did so with knowledge of the patent and with the intent to cause direct infringement by customers and distributors (Compl. ¶42).
- Willful Infringement: The willfulness claim is based on alleged pre-suit knowledge of the ’316 Patent. The complaint alleges that Defendants' partner, Koko's, was notified of the patent via letter on July 26, 2016, and that Defendants were subsequently made aware of both the patent and the infringement lawsuit filed against Koko's (Compl. ¶36). This alleged knowledge, followed by continued infringement, forms the basis for the allegation of "at least objective recklessness" (Compl. ¶44).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of claim construction: how will the court define the phrase "directly accessible through said housing"? The outcome will likely depend on whether the term requires discrete physical openings that expose the bottle, as shown in the patent’s figures, or if it can be construed more broadly to cover other means of applying pressure to an internal bottle.
- A second key question will be evidentiary and factual: can Plaintiff prove that the Defendants, a Louisiana individual and a Chinese company, were in fact partners with Koko's and were made aware of the ’316 patent and prior litigation as alleged? This evidence will be critical to establishing the knowledge and intent elements required for both induced and willful infringement.
- Finally, the case may present a question of infringement under the doctrine of equivalents: if the accused SQUEEZY SQUIRT POP is found not to literally meet every claim limitation (e.g., if its housing is constructed differently or access to the bottle is deemed indirect), the court may need to decide if the product's features perform substantially the same function in substantially the same way to achieve the same result as the patented invention.