DCT
4:20-cv-00278
Brown v. Kruger Family Hol
Key Events
Complaint
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: John P. Brown (Canada); Desgagnés, Brown, et Associés Inc. (Canada)
- Defendant: Trienda Holdings, L.L.C. (Oklahoma) (for the patent infringement count)
- Plaintiff’s Counsel: GABLEGOTWALS
- Case Identification: 4:20-cv-00278, USDC ND/OK, 06/11/2020
- Venue Allegations: Venue is alleged to be proper in the Northern District of Oklahoma because Defendant Trienda Holdings, L.L.C. is an Oklahoma limited liability company that resides in the district.
- Core Dispute: Plaintiffs allege that polyethylene pallets manufactured and sold by Defendant Trienda Holdings infringe a patent related to a specific multi-component polyethylene composition.
- Technical Context: The technology involves creating polymer compositions for industrial products by blending specific types of virgin polyethylene with post-consumer recycled polyethylene to achieve desired physical properties.
- Key Procedural History: The complaint arises from a broader business dispute, including a prior lawsuit between the parties (19-CV-48) that was settled and dismissed without prejudice. Subsequent to the filing of this complaint, the asserted patent, U.S. Patent No. 10,570,276, was the subject of an Inter Partes Review (IPR) proceeding (IPR2021-01295). As a result of the IPR, all claims of the '276 patent were cancelled on October 5, 2022, a development that is dispositive for the patent infringement claim.
Case Timeline
| Date | Event |
|---|---|
| 2018-07-05 | '276 Patent Priority Date |
| 2019-01-01 | Prior lawsuit (19-CV-48) filed (approx. date) |
| 2019-10-31 | Settlement agreements from prior lawsuit signed |
| 2020-02-25 | '276 Patent Issued |
| 2020-06-11 | Complaint Filed |
| 2021-07-21 | Inter Partes Review (IPR2021-01295) filed against '276 Patent |
| 2022-10-05 | U.S. Patent and Trademark Office cancels all claims of '276 Patent |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 10,570,276 - “High Molecular Weight Polyethylene Composition, Product and Process of Making Same”
- Patent Identification: U.S. Patent No. 10,570,276, “High Molecular Weight Polyethylene Composition, Product and Process of Making Same,” issued February 25, 2020.
The Invention Explained
- Problem Addressed: The patent’s background section states that integrating post-consumer recycled (PCR) resins into new products is challenging because the recycling process degrades the resin’s mechanical properties, which can lead to defects in extruded sheets and increase production costs (’276 Patent, col. 1:25-34).
- The Patented Solution: The invention claims to solve this problem through a specific composition that blends four distinct types of polyethylene resin—two virgin and two post-consumer—with a polyethylene antioxidant (’276 Patent, col. 1:40-57). Each of the four resin components is defined by specific physical properties, such as high load melt index (HLMI), melt flow index (MFI), and particle size, to create a final blend with desirable industrial characteristics (’276 Patent, col. 2:42-55).
- Technical Importance: The claimed approach seeks to enable the use of significant quantities of post-consumer recycled material in high-performance applications without compromising the final product's physical properties, offering potential environmental and economic benefits (’276 Patent, col. 1:18-24).
Key Claims at a Glance
- The complaint asserts independent claims 1 (composition), 13 (product), and 15 (process) (Compl. ¶58).
- Independent Claim 1, the core composition claim, requires:
- a first virgin polyethylene resin with a bimodal molecular weight distribution, a specific HLMI range, and particle size distribution;
- a second virgin polyethylene resin with specific HLMI and MFI ranges, and particle size distribution;
- a first post-consumer polyethylene resin with a specific MFI range;
- a second post-consumer polyethylene resin that is high molecular weight (HMW) and has a specific HLMI range; and
- a polyethylene antioxidant.
- The complaint does not explicitly reserve the right to assert dependent claims.
III. The Accused Instrumentality
Product Identification
The accused instrumentalities are "certain polyethylene products, namely pallets," manufactured and sold by Defendant Trienda Holdings, L.L.C. (Compl. ¶56).
Functionality and Market Context
The complaint alleges that Trienda "utilizes certain compositions and processes" to manufacture its polyethylene pallets (Compl. ¶57). It further alleges that Trienda continues to use the "Brown Formula," which it claims includes processes covered by the '276 Patent (Compl. ¶28). The complaint does not provide further technical detail on the specific composition of the accused pallets. No probative visual evidence provided in complaint.
IV. Analysis of Infringement Allegations
The complaint alleges infringement based on "information and belief" and does not provide a detailed claim chart or specific evidence of how the accused products meet each claim limitation. The following table is constructed from the elements of Claim 1 as recited in the complaint.
'276 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| a first virgin polyethylene resin, having a bimodal molecular weight distribution which is high molecular weight (HMW), having a high load melt index measured according ASTM D-1238 (HLMI) of from about 1 to 6 g/10 min; and comprising a particle size distribution of less than about 50 µm | The complaint alleges on information and belief that the compositions used by Trienda to manufacture pallets include this component. | ¶58 | col. 2:43-49 |
| a second virgin polyethylene resin, an HLMI from about 20-70 g/10 min, a melt flow index measured according ASTM D-1238 (MFI) of from about 0.20-0.60 g/10 min, and comprising a particle size distribution of less than about 50 µm | The complaint alleges on information and belief that the compositions used by Trienda to manufacture pallets include this component. | ¶58 | col. 2:49-55 |
| a first post-consumer polyethylene resin, having a MFI of from about 0.10-0.70 g/10 min | The complaint alleges on information and belief that the compositions used by Trienda to manufacture pallets include this component. | ¶58 | col. 2:55-57 |
| second post-consumer polyethylene resin, which is HMW, and having a HLMI of from about 4-8 g/10 min | The complaint alleges on information and belief that the compositions used by Trienda to manufacture pallets include this component. | ¶58 | col. 2:57-59 |
| polyethylene antioxidant | The complaint alleges on information and belief that the compositions used by Trienda to manufacture pallets include this component. | ¶58 | col. 2:59-60 |
Identified Points of Contention
- Evidentiary Questions: The complaint's infringement allegations are made "upon information and belief" (Compl. ¶58). A central question is whether Plaintiffs can produce evidence through discovery to show that Trienda’s resin blend contains all four distinct polyethylene components and that each component meets the specific, narrow numerical ranges for MFI, HLMI, and particle size as required by Claim 1.
- Scope Questions: The case may raise questions about the scope of the claim term "post-consumer polyethylene resin." The dispute could turn on whether the specific recycled materials used by Trienda qualify under the patent's definition.
V. Key Claim Terms for Construction
The Term: "post-consumer polyethylene resin"
- Context and Importance: This term is critical because it defines two of the four required resin components. The source and nature of the recycled material used by Trienda will be compared against the proper construction of this term. Practitioners may focus on this term because the distinction between "post-consumer" waste and "post-industrial" scrap is a common issue in recycling technology patents.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification suggests the term can include materials that have not been used by an end-consumer, stating that the resin may be obtained from "post-industrial blow molded bottles" that "have not been used for there intended purpose and are subsequently clean" (’276 Patent, col. 3:41-45).
- Evidence for a Narrower Interpretation: The background section provides a potentially more restrictive definition, stating, "Post consumer recycled (PCR) resin is the recycled product of waste created by consumers" (’276 Patent, col. 1:15-16).
The Term: "particle size distribution of less than about 50 µm"
- Context and Importance: This limitation applies to both virgin resin components and represents a specific technical requirement. Infringement will depend on whether Trienda's virgin resins meet this size constraint. The term "about" introduces indefiniteness that may be a focus of dispute.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification acknowledges that the virgin resin "may comprise a proportion of particles having a size greater than 50 microns" and that these are "acceptable to the extent that the required properties identified for each resin... are met" (’276 Patent, col. 3:5-11). This language could support a construction that does not require 100% of particles to be below the threshold.
- Evidence for a Narrower Interpretation: The claim language itself recites the "less than about 50 µm" limitation. A party might argue that the passage regarding acceptable larger particles is a narrow exception and that the term should otherwise be construed to mean that the substantial majority of particles must meet the size requirement.
VI. Other Allegations
Indirect Infringement
The complaint makes a conclusory allegation of "contributory infringement or inducement" but provides no specific supporting facts, such as the provision of instructions or components with no substantial non-infringing use (Compl. ¶61).
Willful Infringement
The complaint alleges "upon information and belief" that infringement has been "willful and deliberate" (Compl. ¶64). It does not allege specific facts demonstrating that Trienda had pre-suit knowledge of the '276 patent and its alleged infringement.
VII. Analyst’s Conclusion: Key Questions for the Case
- Procedural Impact of Patent Cancellation: Given that all asserted claims of the '276 patent were cancelled in a subsequent IPR proceeding, the primary question is the procedural resolution of the now-moot patent infringement count.
- Evidentiary Proof of Composition: Assuming the patent were valid, a key evidentiary question would be whether Plaintiff can prove that Defendant's accused pallets are made from a composition that meets every specific quantitative limitation for all four distinct resin types and the antioxidant recited in Claim 1.
- Definitional Scope: A central claim construction question would concern the definition of "post-consumer polyethylene resin." The outcome could depend on whether the patent’s explicit definition in the background section limits its scope, or if examples from the detailed description allow for a broader interpretation that covers post-industrial scrap.