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Is this how the Cookie Crumbles? - Shots Fired in Snack Patent War

Is this how the Cookie Crumbles? - Shots Fired in Snack Patent War

A year or so ago my wife brought home some Oreo cookies. Not knowing any better we opened the package the conventional way by pulling the left hand side open. After sliding the tray out I noticed there was a pull-tab on the top of the package. Being curious I pulled the tab to the right and discovered that I could reach in and grab a cookie and then reseal the top without opening the package permanently. Resealablle food packages have been around for some time but normally they involved some sort of pinching or zipping mechanism to reseal the package. This was the first time that I had seen a resealable package for cookies and I couldn’t help but feel this was a pretty clever and useful application. Oreo’s are branded as being made by Nabisco which is owned by Kraft Foods which is owned by Mondelez and this technology, which the company calls Snack ‘n Seal, can be found on all Nabisco cookie brands including Chips Ahoy! and others. It never occurred to me, although I suppose it should have, that Kraft Foods would have patented the technology.

Fast forward to last fall and I noticed that some shortbread cookies had a similar opening. I noticed that they were by Keebler in this case but I didn’t think anything more about it. Well, Keebler is a brand owned by Kellogg and on Wednesday they were sued for patent infringement by Kraft Foods as reported by Reuters. I also noticed that PriorSmart had the case listed in the daily litigation email they produce so I took the opportunity to download the complaint from the US District Court for the Northern District of Illinois Eastern Division. At seven pages long the complaint is a short but fascinating read. In it we find out that Kraft Foods’ parent company, Mendelez met with Kellogg in August of 2012 and notified them that they were using Snack ‘n Seal technology in conjunction with their Keebler Sandies Product. In paragraphs 12-19 of the complaint all of the features of the Sandies package which correspond to the Snack ‘n Seal technology are  described.

So this interesting approach to resealing cookie packages was patented after all and now was the source of a patent infringement suit involving two of the largest food companies in the world. I looked at a package of Sandies and didn’t see that any patents were listed on them. This doesn’t mean that Kellogg doesn’t have their own patents for resealable cookie packages but they aren’t marking their package with them. Being really curious now I took a quick trip to the grocery store to see if I could find Snack n’ Seal on any other cookie brands and if any of the Nabisco brands were marked with the patent listed in the complaint. Walking down the cookie aisle I didn’t see any other brands using the technology. For the most part I also didn’t see the Nabisco brands marked with a patent either, that is until I saw, what appears to be, a newer cookie called Chips Ahoy! Reece’s Chocolate Chip Cookies which lo and behold is marked with US6918532 (see picture at top). This is the same patent mentioned in the infringement case against Kellogg. It is also interesting to see that Kraft Foods is licensing the appropriate intellectual property for Reese’s which is a Hershey brand.

So, is this one of those frivolous lawsuits we here so much about lately? Is Kraft trying to stifle competition in the cookie isle by filing an obvious patent which they were able to sneak past the USPTO? If we look in Public PAIR at the file wrapper associated with the ‘532 patent this doesn’t seem to be the case. I won’t go through all of the details of the file history since I already provided that sort of analysis in a recent post but I did find two items about this wrapper very interesting. The first was the number of backward citations found on the front page of the patent. 48 US patents are mentioned under the Cited Reference section. Twelve of these are cited by the examiner. There are also a French, European and Japanese patent documents listed as being cited by the applicant. While there is no non-patent literature mentioned this is still a significant number of patents to have been suggested by the applicant as well as the examiner. I also looked at the Continuity tab and while I didn’t find a PCT application claiming priority to the US filing I did find application number 90/008,843. This is an application for an Ex Parte Reexamination of the ‘532 patent which was initiated by Marvin Petry of  Stities & Harbison in October of 2007. Petry is the Attorney/Agent listed on the ‘532 patent so this request was initiated by Kraft Foods. The ‘532 patent was filed for in 2003 and granted in 2005. The reexamination was completed four years later with all of the original 25 claims confirmed as originally written. In addition 41 new claims were added to the document. The breadth of the reexam was pretty stunning. In all more than 150 US patents and applications were looked at along with almost 50 foreign patent documents and several pieces of non-patent literature. In the business this is referred to as a battle-hardened patent since it has gone through an extremely comprehensive reexam and it not only came through with all claims intact but added many more as well.

A quick look for INPADOC family members also shows that this patent has 28 additional family members around the world. Clearly, Kraft Foods has made a significant investment in the Snack n’ Seal technology and they have gone to a great deal of trouble to protect that technology with a significant patent and corresponding portfolio. Having made such a significant investment it should come as no surprise that they are now seeking to protect it with this lawsuit. This is a great example of the patent system working as it was designed to as an incentive for companies to create new technologies.

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