General Mills, Inc. v. Hunt-Wesson, Inc.

• Decision Date: 09 January 1997
• Docket Number: HUNT-WESSO,No. 96-1238,INC,96-1238
• Citation: 103 F.3d 978,41 USPQ2d 1440
• Parties: GENERAL MILLS, INC., Plaintiff-Appellant, v., Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 978

103 F.3d 978

41 U.S.P.Q.2d 1440

GENERAL MILLS, INC., Plaintiff-Appellant, v. HUNT-WESSON, INC., Defendant-Appellee.

No. 96-1238.

United States Court of Appeals, Federal Circuit.

Jan. 9, 1997.

Steven B. Pokotilow, Stroock & Stroock & Lavan, of New York, New York, argued for plaintiff-appellant. With him on the brief were Mark P. Kesslen and Andrew G. Isztwan.

Robert A. Schroeder, Pretty, Schroeder, Brueggemann & Clark, of Los Angeles, CA, argued for defendant-appellee. With him on the brief was J. Christopher James.

Before ARCHER, Chief Judge, FRIEDMAN, Senior Circuit Judge, and RADER, Circuit Judge.

Opinion for the court filed by Chief Judge ARCHER. Circuit Judge RADER dissents without separate opinion.

ARCHER, Chief Judge.

General Mills, Inc. (General Mills) appeals from a January 22, 1996, order of the United States District Court for the District of Minnesota, Case No. 95-CV-98, granting summary judgment in favor of Hunt-Wesson, Inc. (Hunt-Wesson), holding that Hunt-Wesson did not infringe claims 1 and 7 of U.S. Patent No. 4,267,420 (the '420 patent). We affirm.

BACKGROUND

On May 12, 1981, the '420 patent issued to William A. Brastad, who assigned it to General Mills. The '420 patent discloses and claims a food item intended to be heated in a microwave oven in combination with a flexible packaging designed to cover the food item to promote a change in color or crispness of the surface of the food item in the presence of microwave energy. Claims 1 and 7, the only independent claims of the '420 patent, are at issue. Claim 1, with the limitations at issue underscored, provides:

1. In combination with a food item capable of having its color changed or being crispened by thermal energy, said food item to be heated in a microwave oven, wrapping material conforming generally to the shape of said food item comprising a flexible dielectric substrate having a thin semiconducting coating thereon residing in a close proximal relation to a substantial surface portion of said food item, said thin semiconducting coating having the property of being able to convert a proportion of the microwave energy of a microwave oven into heat in the coating itself to thereby change the color or crispness of the surface of the food item while permitting the remainder of the said microwave energy to pass through the wrapping material to dielectrically heat the food item.

Claim 1 is representative of the '420 patent claims. The portion of claim 7, however a relatively thin flexible layer of metal carried by said dielectric material, said metallic layer also conforming generally to the shape of said food item and residing in a proximal relation thereto....

corresponding to the second set of limitations underscored in claim 1 above, reads:

Hunt-Wesson produces and sells "Orville Redenbacher" brand microwaveable popcorn. Hunt-Wesson's microwaveable popcorn is prepackaged in a microwaveable bag designed to contain the popcorn while it cooks. Prior to popping, the popcorn is enveloped by the microwaveable bag and exists in a cake consisting of popcorn kernels, oil, and seasonings (popcorn slurry).

The Hunt-Wesson microwaveable bag consists of an outer layer of paper, an inner layer of paper, and a thin metallic coating (susceptor) laminated therebetween. The susceptor resides in a portion of one side of the Hunt-Wesson bag.

General Mills instituted an action alleging infringement of the '420 patent claims by Hunt-Wesson's "Orville Redenbacher" microwaveable popcorn product. Hunt-Wesson filed a motion for summary judgment on the ground that its microwaveable popcorn product does not infringe the '420 patent claims. In response, General Mills filed a motion for partial summary judgment alleging that the "food item" of claims 1 and 7 of the '420 patent encompasses popcorn. The district court granted summary judgment in favor of Hunt-Wesson, concluding that, as a matter of law, claims 1 and 7 of the '420 patent are not infringed.

The district court concluded that claims 1 and 7 are not literally infringed because popcorn is not a food item encompassed by the '420 patent and the structural limitations set forth in the claims are not met by the physical characteristics of Hunt-Wesson's microwaveable popcorn product. Regarding the doctrine of equivalents, the district court noted that General Mills failed to proffer evidence creating a factual dispute as to whether certain limitations not met literally are met equivalently by Hunt-Wesson's microwaveable popcorn product.

On appeal, General Mills contends that the district court erred, as a matter of law, by: (1) failing to conclude that popcorn is a food item encompassed by claims 1 and 7 of the '420 patent; (2) granting summary judgment on literal infringement because there are genuine issues of material fact concerning the physical characteristics of Hunt-Wesson's "Orville Redenbacher" microwaveable popcorn products; and (3) improperly resolving questions of fact concerning the doctrine of equivalents in granting summary judgment.

DISCUSSION

I. Summary Judgment

This Court reviews de novo a district court's grant of summary judgment. See Avia Group Int'l, Inc. v. L.A. Gear California, Inc., 853 F.2d 1557, 1561, 7 USPQ2d 1548, 1551 (Fed.Cir.1988).

According to the standard set forth in Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when:

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A material fact is one that may affect the decision, so that the finding of that fact is relevant and necessary to the proceedings. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A genuine issue is shown to exist if sufficient evidence is presented such that a reasonable fact finder could decide the question in favor of the nonmoving party. Id. The evidence submitted by the nonmovant in opposition to a motion for summary judgment "is to be believed, and all justifiable inferences are to be drawn in [its] favor." Id. at 255, 106 S.Ct. at 2513 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970)).

We conclude that the district court properly granted summary judgment in this

case. Although the district court's analysis may not have been perfect throughout, we review judgments, not opinions. Chemical Eng'g Corp. v. Essef Indus., Inc., 795 F.2d 1565, 1572, 230 USPQ 385, 390 (Fed.Cir.1986) (citing Fromson v. Advance Offset Plate, Inc., 755 F.2d 1549, 1556, 225 USPQ 26, 31 (Fed.Cir.1985)). General Mills has not identified a material factual dispute related to the issue of infringement; the controlling issue, therefore, regarding infringement in this case is one of law. Moreover, the district court did not improperly fail to conclude that popcorn is a food item encompassed by claims 1 and 7 of the '420 patent as a matter of law.

II. Literal Infringement

An infringement analysis entails two steps: (1) the claims must be construed; and (2) the properly construed claims must be compared to the allegedly infringing device. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976, 34 USPQ2d 1321, 1326 (Fed.Cir.1995), aff'd, --- U.S. ----, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Claim construction is a question of law that we review de novo. Id. at 979, 34 USPQ2d at 1329.

To ascertain the meaning of, or construe, patent claims, the intrinsic evidence of record should be considered first, i.e., the patent itself, including the claims, the specification, and the prosecution history. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582, 39 USPQ2d 1573, 1576 (Fed.Cir.1996); Markman, 52 F.3d at 979, 34 USPQ2d at 1329.

Literal infringement requires that every limitation of the patent claim be found in the accused infringing device. Read Corp. v. Portec, Inc., 970 F.2d 816, 821, 23 USPQ2d 1426, 1432 (Fed.Cir.1992). The literal infringement determination, whether properly construed claims read onto an accused product or method, is a question of fact. Charles Greiner & Co., Inc. v. Mari-Med Mfg., Inc., 962 F.2d 1031, 1034, 22 USPQ2d 1526, 1528 (Fed.Cir.1992).

The district court concluded that popcorn is not a food item that meets the color and crispness limitations set forth in claims 1 and 7 of the '420 patent, and thus, that Hunt-Wesson's microwaveable popcorn product does not infringe claims 1 and 7 as a matter of law. In light of the specification and the prosecution history, the district court construed the color and crispness limitations of claims 1 and 7, which read "[i]n combination with a food item capable of having its color changed or being crispened by thermal energy," as including only those foods normally expected to change color or crispness by thermal energy. Popcorn, the district court found, is not such a food item.

General Mills asserts that the district court erred by failing to conclude that popcorn is a food item covered by claims 1 and 7 of the '420 patent as a matter of law. Pointing to a limitation set forth in both claims providing "to thereby change the color or crispness of the surface of the food item," General Mills contends that only the surface of the food item need change color or crispness to be encompassed by claims 1 and 7. According to General Mills, by ignoring that limitation the district court improperly concluded that popcorn is not covered by claims 1 and 7 as a matter of law.

We do not agree. Considering claims 1 and 7 in their entirety and the intrinsic evidence of record, we conclude that the limitations associated with the food item require a food item, in its final form, capable of having a substantial portion, in...