A few weeks ago I had a little fun writing about Kraft Foods and the patent suit they are pursuing against Kellogg on resealable packages for cookies. I was impressed in that case at how much prior art Kraft Foods presented during prosecution. In addition to the initial examination Kraft Foods decided to also put the patent into an Ex Parte Reexamination to battle harden it even further. My conclusion at the time was that this patent represented a significant investment by Kraft and they were seeking to take advantage of it.
While looking through a list of new patent suits from MaxVal I was a little surprised to come across another patent suit from Kraft Foods this time against a company called Land O’Frost who sells deli meats. Land O’Frost also produces packages and presumably deli meats for companies like Kroger who sell them under their own store brand name. The image below is from the complaint filed by Kraft Foods showing a Kroger brand package for selling deli meats.
The patent at issue in this case is US7172779 entitled – Container for sliced and fluffed food products. The key attribute in this case is a package which allows the deli meats to be presented in a freshly sliced deli-style form as opposed to stacking the meats flat on top of one another. The curves and gaps between the individual slices provides for the “fluffed” appearance which is said to be appealing to customers. The package in this particular case is designed to prevent the loss of this fluffed appearance during transportation and display of the product at the grocery store.
Looking at the claims for this patent the broadest one, claim 19, says the following:
19. A food package for containing sliced food products, the food package comprising:
a rigid base member;
a compartment of the base member in which slices of a food product are received, the sliced food product arranged to have a fluffed appearance within the compartment;
a bottom wall of the compartment;
side wall portions of the compartment upstanding from the bottom wall, wherein a side wall portion has a ramp section that extends downward and inward toward the bottom wall at an oblique angle
an opening to the compartment above the bottom wall; and
a rigid lid covering the opening to contain the sliced food product within the compartment, wherein the rigid lid hermetically seals to the rigid base member to seal the sliced food product within the compartment to avoid the need for sealing the sliced food product in a separate pouch within the compartment.
Now, living in the Midwest I have ready access to Kroger stores and once again decided that a shopping trip was in order to find out what was really going on here.
Kraft Foods sells deli meats under the Oscar Mayer brand and upon looking in the luncheon meats section I found that about 50% of the section was dominated by Oscar Mayer products referred to as Deli Fresh and packaged in a container looking very much like the drawings depicted in the ‘779 patent.
This is a pretty distinctive looking package with sloped sides and the little squares in the bottom corners all designed to help keep the “fluffed” deli meats from unfolding and lying flat on top of one another.
So what do the Oscar Mayer and corresponding Land O’Frost packages look like that I found on the store shelves at Kroger? The first image shows the packages lying face down while the second shows them side on.
As can be seen from the pictures, both packages have sloped sides as well as the little square impressions on the bottom of the package. They are not exactly the same shape, the Oscar Mayer slope is much steeper and the squares on the bottom are much more pronounced but it seems likely that the Land O’Frost was inspired by the Oscar Mayer one. It will be up to the US District Court for the Western District of Wisconsin to decide what the claim scope of the ‘779 patent is and whether the Land O’Frost packages infringes it but once again this does not look to be an instance where Kraft Foods is pursuing litigation frivolously.
Looking at the prosecution history of the ‘779 patent it is also interesting to observe that while there is not much coverage for this invention internationally, there are two additional granted US patents on this idea which must also theoretically be contented with even though they are not mentioned in the existing suit.
It was also interesting to see the amount of prior art which was considered during the prosecution of the ‘779 patent and that most of the references were provided by the examiner as opposed to coming from the applicant. Forty-two US patents were considered during examination and twenty-eight of those are listed as being cited by the examiner. While no foreign patents were mentioned six pieces of non-patent prior art from other producers of deli meats were consider as well.
Kraft Foods did not come by this patent easily either, it was filed for in September of 2002 and went through an initial non-final and final rejection followed by a request for continuing examination (RCE) and another non-final and final rejection before being considered in a state for allowance in September of 2006.
Kraft Foods is clearly very serious about protecting their investment in packaging technologies with patents and also appear to be very willing to seek protection for that investment by pursuing litigation if these packages are copied. They spent time and money developing unique solutions to consumer product needs and are now looking to take maximum advantage of those with the market exclusions that patents provide.
