2:23-cv-00307
Fresh Group Ltd v. Elkay Plastics Co Inc
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: The Fresh Group, Ltd. (Wisconsin)
- Defendant: Elkay Plastics Co., Inc. (California)
- Plaintiff’s Counsel: Boyle Fredrickson, S.C.
- Case Identification: 2:23-cv-00307, E.D. Wis., 03/07/2023
- Venue Allegations: Plaintiff alleges venue is proper in the Eastern District of Wisconsin because Defendant has directed business to, transacted business in, and sold goods to retailers in Wisconsin, including through its website and participation in local trade shows.
- Core Dispute: Plaintiff alleges that Defendant’s food packaging pouches infringe a patent related to a specialized pouch for holding sliced melon.
- Technical Context: The lawsuit concerns the market for single-use food packaging designed to store, transport, and display pre-sliced produce, such as watermelon, for retail sale.
- Key Procedural History: The complaint alleges that Plaintiff notified Defendant of its infringement on September 2, 2022, approximately six months before filing the lawsuit. This notification forms the basis for the willfulness allegation.
Case Timeline
| Date | Event |
|---|---|
| 2014-01-16 | U.S. Patent 9,650,178 Priority Date |
| 2017-05-16 | U.S. Patent 9,650,178 Issued |
| 2022-09-02 | Plaintiff Notified Defendant of Infringement |
| 2023-03-07 | Complaint Filed |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 9,650,178 - Watermelon Pouch
The Invention Explained
- Problem Addressed: The patent's background section describes conventional plastic cling wrap for packaging sliced watermelon as unreliable, particularly when moisture is present, inconvenient for consumers to handle and reseal, and potentially creating food safety issues by harboring bacteria (’178 Patent, col. 1:45-63).
- The Patented Solution: The invention is a gusseted plastic pouch specifically constructed to address these problems. It features a floor and specially bonded lower corners that create sturdy sidewalls and an "upwardly concave interior volume" designed to cradle and support the unique convex shape of a watermelon slice, preventing it from tipping or shifting (’178 Patent, Abstract; col. 2:7-12). This structure is intended to provide better product presentation, stability on flat surfaces, and consumer convenience via features like a handle and a zip-lock seal (’178 Patent, col. 2:12-17).
- Technical Importance: This design sought to provide a structurally robust, consumer-friendly, and more sanitary packaging alternative specifically tailored for large, heavy, and awkwardly shaped produce slices, moving beyond generic, formless plastic wraps (’178 Patent, col. 2:1-4).
Key Claims at a Glance
- The complaint asserts infringement of at least independent claim 16 (Compl. ¶28).
- The essential elements of independent claim 16 include:
- Front and back panels connected at their side edges and a floor with a gusset that connects the bottom portions of the panels.
- A lower left corner composed of a "front left corner segment" and a "back left corner segment," each defined by a "generally triangular area of bonding."
- A lower right corner similarly composed of a "front right corner segment" and a "back right corner segment."
- A "left attachment" that connects the front and back left corner segments to each other.
- A "right attachment" that connects the front and back right corner segments to each other.
- The left and right attachments are at a location "spaced from upper and lower ends" of their respective corner segments "to form non-bonded air gaps therebetween."
III. The Accused Instrumentality
Product Identification
Defendant Elkay’s "#READYFRESH melon pouch" and other "similarly constructed pouches" (Compl. ¶26).
Functionality and Market Context
The complaint describes the accused product as a pouch used for advertising and selling melon and other produce (Compl. ¶25, ¶28). A photograph shows the accused "#ReadyFresh Melon Pouch" containing a slice of watermelon, illustrating the product in its intended use (Compl. p. 6). The complaint alleges these pouches are sold to customers for packaging produce, positioning them in the same market as Plaintiff's patented technology (Compl. ¶28). An annotated photograph of the accused pouch identifies its alleged "Front panel," "Side edge," and "Corners" (Compl. p. 8).
IV. Analysis of Infringement Allegations
’178 Patent Infringement Allegations
| Claim Element (from Independent Claim 16) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| front and back panels connected to each other at outer side edges and a floor that connects bottom portions of the front and back panels to each other and includes a gusset... | Elkay's pouch has front and back panels connected at side edges and a floor with a gusset that connects the bottom portions. | ¶31 | col. 10:4-22 |
| a lower left corner including, a front left corner segment defined by a generally triangular area of bonding...; a back left corner segment defined by a generally triangular area of bonding... | The accused pouch has a lower left corner that includes a front left corner segment and a back left corner segment, each allegedly defined by a triangular area of bonding between the panels and the gusset. A close-up photograph of the accused pouch's corner identifies the alleged "Front left corner segment" and the "Back left corner segment (behind)" (Compl. p. 9). | ¶33 | col. 14:26-34 |
| a lower right corner including, a front right corner segment defined by a generally triangular area of bonding...; a back right corner segment defined by a generally triangular area of bonding... | The accused pouch has a lower right corner that includes a front right corner segment and a back right corner segment, each allegedly defined by a triangular area of bonding. | ¶35 | col. 14:35-43 |
| a left attachment that attaches the front left corner segment and the back left corner segment to each other; and a right attachment that attaches the front right corner segment and the back right corner... | The accused pouch has a left attachment connecting the front and back left corner segments and a right attachment connecting the front and back right corner segments. | ¶37 | col. 14:44-49 |
| the left attachment is at a location that is spaced from upper and lower ends of the front left corner segment and the back left corner segment to form non-bonded air gaps therebetween... [and similarly for the right attachment] | The complaint alleges the attachments on the accused pouch are located in a way that is spaced from the upper and lower ends of the corner segments, thereby forming "non-bonded air gaps." A pair of photographs show a hand holding the accused pouch to illustrate the alleged "Air gap" and the location of the "Left attachment" and "Right attachment" relative to the "Upper ends" and "Lower ends" of the corner segments (Compl. p. 12). | ¶39 | col. 14:50-57 |
Identified Points of Contention
- Technical Questions: The core of the dispute may center on the physical construction of the accused pouch's lower corners. A key question for the court will be whether the bonding and attachments in Elkay's pouch create the specific structures recited in the claim, namely the "generally triangular area of bonding" for each corner segment and the "non-bonded air gaps" resulting from "spaced" attachments. Evidence will be required to demonstrate the precise location and nature of the pouch's seams and welds.
- Scope Questions: The infringement analysis will depend on the interpretation of claim terms. For example, does the manufacturing process used for the accused pouch result in a "left attachment" and a "right attachment" that are structurally and functionally consistent with the patent's teachings, or is there a material difference in how the corners are joined?
V. Key Claim Terms for Construction
The Term: "non-bonded air gaps"
Context and Importance: This term appears in the final limitation of claim 16 and describes a specific structural result of the pouch's construction. Practitioners may focus on this term because it appears to be a key distinguishing feature of the claimed invention. The existence, size, and functional significance of these alleged gaps in the accused product will likely be a central point of technical dispute.
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The claim language itself does not specify the size or exact shape of the "gaps," only that they are "non-bonded" and exist "therebetween" the corner segments due to the spaced attachment. This could support an interpretation that any discernible un-fused area between the segments meets the limitation.
- Evidence for a Narrower Interpretation: The patent describes a specific construction method where triangular corner segments are first formed, and then a separate attachment (e.g., "single weld 50") connects them ('178 Patent, col. 8:20-51). A defendant may argue that the term should be limited to gaps formed by this particular sequence of bonding and spot-welding, as opposed to gaps that might incidentally arise from a different, continuous sealing process.
The Term: "attachment" (e.g., "a left attachment")
Context and Importance: This term defines how the front and back corner segments are joined. Its construction is important because the "attachment" must be "spaced" from the ends of the corner segments to create the claimed "non-bonded air gaps." Whether the accused pouch's corner seals qualify as "attachments" under the correct construction will be critical.
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The term "attachment" is a general term. The claim does not limit it to a specific type of bond, which may support a construction covering various methods like heat sealing, welding, or adhesives.
- Evidence for a Narrower Interpretation: The specification describes the attachment in a specific embodiment as a "single weld 50" that is "spot welded together" ('178 Patent, col. 8:40-46). A defendant may argue that this embodiment limits the term "attachment" to a discrete point of connection, as distinguished from a continuous seam that might run the full length of the corner.
VI. Other Allegations
Willful Infringement
The complaint alleges willful infringement based on the assertion that Defendant had pre-suit knowledge of the ’178 patent. This knowledge is alleged to have come from a notification letter sent by Plaintiff to Defendant on September 2, 2022 (Compl. ¶41).
VII. Analyst’s Conclusion: Key Questions for the Case
A central issue will be one of structural correspondence: Does the physical construction of Elkay's accused melon pouch, particularly at the lower corners, contain the specific combination of "triangular... corner segments," distinct "attachments," and "non-bonded air gaps" as recited in Claim 16 of the '178 patent? The case may rely heavily on expert testimony and physical inspection to compare the accused product to the claim limitations.
The outcome will also likely depend on a question of definitional interpretation: How will the court construe the term "attachment"? Will it be interpreted broadly to encompass any form of bonding that joins the corner segments, or will it be limited more narrowly to the discrete "spot weld" described in the patent's preferred embodiment? The resolution of this question could determine whether the accused product's corner seals meet a key element of the asserted claim.