DCT

7:25-cv-12369

Dell Corning Corp v. Polywrap Recycling Inc

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I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 7:25-cv-12369, D.S.C., 09/08/2025
  • Venue Allegations: Venue is based on Plaintiff Dell-Corning Corporation's principal place of business being located in the District of South Carolina.
  • Core Dispute: Plaintiff seeks a declaratory judgment that Defendant’s design patent for a vented plastic bag is invalid, unenforceable, and not infringed by Plaintiff’s plastic bag products.
  • Technical Context: The dispute concerns the ornamental design of commercial plastic bags, specifically the arrangement and appearance of ventilation features.
  • Key Procedural History: The action was precipitated by a cease-and-desist letter sent by Defendant Polywrap to a customer of Plaintiff Dell-Corning, alleging infringement and threatening litigation. Subsequent communications between the parties failed to resolve the dispute, leading Dell-Corning to file this declaratory judgment action.

Case Timeline

Date Event
2017-05-31 '448 Patent Priority Date
2018-09-04 '448 Patent Issue Date
2025-05-13 Defendant sends cease-and-desist letter to Plaintiff's customer
2025-06-18 Plaintiff responds to Defendant, asserting invalidity
2025-08-22 Defendant replies, disputing invalidity and demanding royalties or cessation
2025-09-08 Complaint for Declaratory Judgment filed

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

U.S. Patent No. D827,448 - “Vented plastic bag”

  • Issued: September 4, 2018

The Invention Explained

  • Problem Addressed: Design patents do not address functional problems but rather seek to protect the novel, non-obvious, and ornamental appearance of an article of manufacture (’448 Patent, Claim). The patent aims to provide a new and distinct aesthetic appearance for a vented plastic bag.
  • The Patented Solution: The patent claims the specific ornamental design for a vented plastic bag as illustrated in its figures (’448 Patent, Claim). The design consists of a tall, rectangular bag featuring two vertical columns of small, circular vents arranged symmetrically down the front face of the bag, as shown in the perspective view of FIG. 1 and the rear view of FIG. 3 (’448 Patent, FIG. 1, FIG. 3). The top and bottom views show a thin, sealed profile (’448 Patent, FIG. 4, FIG. 5).
  • Technical Importance: The claimed design provides a specific visual arrangement of ventilation holes, which can serve as a source identifier or create a distinct product appearance in the market for packaging materials.

Key Claims at a Glance

  • The patent contains a single claim for "The ornamental design for a vented plastic bag, as shown and described."
  • The scope of this claim is defined entirely by the visual representations in the patent's five figures.

III. The Accused Instrumentality

Product Identification

The complaint identifies the accused products as "certain of Plaintiff's plastic bag products" (Compl. ¶8.b).

Functionality and Market Context

The complaint does not provide specific details, model numbers, or visual representations of the accused products. It refers to them generally as plastic bags and notes that Plaintiff is a major manufacturer of automotive, medical, and consumer packaging products (Compl. ¶7). The complaint alleges that Defendant’s infringement accusations concern these products (Compl. ¶8.b).

IV. Analysis of Infringement Allegations

The complaint does not contain an affirmative claim chart for infringement, as it is an action for declaratory judgment of non-infringement. Instead, it summarizes Dell-Corning's position that its products do not infringe. The complaint notes that Defendant provided an infringement claim chart in its cease-and-desist letter, but that chart is not attached to the complaint (Compl. ¶8.c).

Dell-Corning's primary argument for non-infringement is that "an ordinary observer would not find the design of the Accused Products to be substantially similar to any protectable ornamental, non-functional features of the design claimed in the '448 Patent" (Compl. ¶22). This pleading directly invokes the controlling legal standard for design patent infringement.

A secondary and related argument is that the claimed design is invalid because it is "functional, rather than ornamental" (Compl. ¶17.a). To the extent any features are deemed ornamental, Dell-Corning argues they are not substantially similar to its accused products (Compl. ¶22).

No probative visual evidence provided in complaint.

V. Key Claim Terms for Construction

In design patent cases, the "claim" is the visual design itself, so there are no textual terms to construe in the traditional sense. The central dispute analogous to claim construction is determining which aspects of the claimed design are ornamental and protected, versus which are functional and unprotectable.

  • The Term: "The ornamental design"
  • Context and Importance: The validity of the patent and the scope of its protection hinge on whether the claimed design—specifically, the pattern of circular vents—is primarily ornamental or dictated by function. Plaintiff expressly alleges the design is functional (Compl. ¶17.a). If the court agrees, the patent is invalid. If the court finds the design is ornamental, the infringement analysis will proceed by comparing the accused products to those ornamental features.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader (Ornamental) Interpretation: The patent itself is a design patent, which creates a presumption of ornamentality. The title "Vented plastic bag" and the claim language "The ornamental design for a vented plastic bag" explicitly frame the invention in terms of its appearance (’448 Patent, Title, Claim).
    • Evidence for a Narrower (Functional) Interpretation: An accused infringer may argue that the arrangement of vents (e.g., two columns, specific spacing) is not a matter of aesthetic choice but is instead dictated by manufacturing efficiency, optimal airflow for a particular product, or structural integrity. The complaint alleges invalidity for functionality, suggesting this will be a central argument (Compl. ¶17.a).

VI. Other Allegations

  • Invalidity: Plaintiff alleges that the ’448 Patent is invalid and/or unenforceable for multiple reasons beyond functionality, including failure to meet the requirements of novelty under 35 U.S.C. § 102 and nonobviousness under 35 U.S.C. § 103 (Compl. ¶17.b-c). The complaint identifies numerous prior art patent documents and alleges the existence of invalidating prior commercial sales (Compl. ¶¶ 4, 9).
  • Willful Infringement: The complaint does not allege willful infringement. However, it notes that Defendant's cease-and-desist letter to Plaintiff's customer threatened that failure to comply "may create a claim of willful infringement" (Compl. ¶8.h). This threat is part of the basis for Plaintiff's reasonable apprehension of suit, justifying the declaratory judgment action (Compl. ¶12).
  • Exceptional Case: Plaintiff seeks a finding that the case is "exceptional" under 35 U.S.C. § 285, which would entitle it to an award of attorneys' fees (Compl. ¶¶ 19, 24).

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

The resolution of this declaratory judgment action will likely depend on the court's answers to two fundamental questions:

  1. A core issue will be one of validity: Is the claimed design for a "Vented plastic bag," particularly its arrangement of circular vents, primarily ornamental as required for design patent protection, or is it dictated by function, as alleged by Dell-Corning, which would render the patent invalid under 35 U.S.C. § 171?
  2. Should the patent be found valid, a key evidentiary question will be one of infringement scope: Applying the "ordinary observer" test, is the visual appearance of Dell-Corning's accused bags "substantially similar" to the purely ornamental aspects of the '448 Patent's design, or are the similarities related only to unprotectable functional elements?