Sunny Fresh Foods, Inc. v. Michael Foods, Inc., CIV. 00-2117DSDJMM.
| Decision Date | 18 June 2002 |
| Docket Number | No. CIV. 00-2117DSDJMM.,CIV. 00-2117DSDJMM. |
| Citation | 205 F.Supp.2d 1077 |
| Parties | SUNNY FRESH FOODS, INC., Plaintiff, v. MICHAEL FOODS, INC., and North Carolina State University, Defendants. |
| Court | U.S. District Court — District of Minnesota |
Roberts, Esq. and Faegre & Benson, Minneapolis, and Steven C. Schroer, Esq. Philip T. Petti, Esq., Timothy P. Maloney, Esq. and Fitch, Even, Tabin & Flannery, Chicago, IL, for plaintiff.
Justin H. Perl, Esq., Geoffrey P. Jarpe, Esq., Richard A. Kempf, Esq., and Maslon, Edelman, Borman & Brand, Minneapolis, MN, and Richard P. Vitek, Esq., James D. Myers, Esq., D. Randall, Ayers, Esq. and Myers, Bigel, Sibley & Sajovec, Raleigh, NC, for defendants.
This matter is before the court upon defendants' motion to strike expert declarations and for claim construction of four patents-in-suit: U.S. Reissued Patent RE37,225E, U.S. Patent No. 4,808,425, U.S. Patent No. 4,957,759, U.S. Patent No. 4,994,291. Based on a review of the file, record and proceedings herein, and for the reasons stated, the court denies defendants' motion to strike expert declarations and construes the patents-in-suit as follows:
1. "Liquid whole egg" refers to liquid whole egg or liquid whole egg blends containing less than 2% added non-egg ingredients. Such non-egg ingredients may include preservatives.
2. "Liquid whole egg product" refers to products which include liquid whole egg and may have more than 2% added non-egg ingredients. Such non-egg ingredients may include preservatives.
3. "Liquid whole egg blend" means blends of whole egg with less than 1% sugar and/or salt, liquid whole egg blends with 24 to 38% egg solids and 12% or less of added non-egg ingredients.
4. "Liquid whole egg product is liquid whole egg blend which is about 24.38% egg solids and about 12% or less of added non-egg ingredients," includes the term non-egg ingredients, which means any ingredients not naturally found in egg including shelf life extending additives.
5. "Where a liquid egg product contains not more than 12% of added non-egg ingredients" includes the term non-egg ingredients, which means any ingredients not naturally found in the egg including shelf life extending additives.
6. "Consisting essentially of liquid whole egg product" refers to products that include liquid whole egg product as set forth above but not elements that could materially affect the basic and novel characteristics of the liquid whole egg.
7. "Shelf life" means the period of time during which the product is not obviously spoiled using the organoleptic tests set forth in the patent under refrigerated (4 degrees Celsius) conditions.
8. "Extended refrigerated shelf life" means a shelf life longer than the 7 to 14 day shelf life of refrigerated liquid whole egg products which have been conventionally pasteurized.
9. "About" means approximately.
10. "Shelf life of from about 16 to 36 weeks under refrigerated conditions" means shelf life of approximately 16 to 36 weeks under refrigerated conditions.
11. "Shelf life of about 8 weeks to about 36 weeks" means shelf life of approximately 8 weeks to approximately 36 weeks.
12. "Shelf life of about 4 weeks to about 36 weeks" means shelf life of approximately 4 weeks to approximately 36 weeks.
13. "Shelf life of about 16 weeks" means shelf life of approximately 16 weeks.
14. "Shelf life of about 16 weeks to 36 weeks under refrigerated conditions" means shelf life of approximately 16 weeks to 36 weeks under refrigerated conditions.
15. "Characterized by refrigerated shelf life of about 4 to 36 weeks" means characterized by refrigerated shelf life of approximately 4 to 36 weeks.
16. "Equivalent point" requires the methods set out in the patent, including the 1982 and 1986 articles by Swartzel.
17. "Equivalent temperature" and "equivalent time" describe the total thermal treatment received by the liquid whole egg product during processing.
18. "Heated for a predetermined time and to a predetermined temperature insufficient to cause more than a 5% soluble protein loss (SPL) from said product" means testing a product to determine the difference in the soluble protein loss pre- and post-pasteurization based on the methods described in the patent.
19. means modeling the total thermal treatment received by the product according to the equivalent point calculation referred to in the patent specification and comparing the resultant equivalent point with the 5% SPL (Batch) line of Figure 3.
20. "Predetermined time/temperature" means established in advance based upon USDA preapproval requirements but not limited to commercial runs
21. "Preselected" means known ahead of time.
22. "A preselected refrigerated shelf life" means a refrigerated shelf life that is known ahead of time.
23. "Aseptically packaged," "aseptically packaging," and "aseptic packaging" mean packaged to the exclusion of microorganisms other than those carried by the liquid whole egg product.
24. "Packaging/packaged" means placed or placing in a container.
25. "Sterilize" means to make free of all viable microorganisms.
26. "Non-sterile pasteurized liquid whole egg" means liquid whole egg that has been pasteurized but not made free of all viable microorganisms.
27. "Contacting said liquid whole egg product to a heated surface" means the product is heated in contact with a higher temperature surface that does not need to be part of the heat exchanger.
28. "Turbulence" means the mixing of particles over the cross-section of the product stream. "Major portion of the time heated" means greater than 50% of the time the product is heated. "Periodically" means from time to time.
29. "Ultrapasteurizing" means to decrease the number of spoilage organisms below that obtained with conventional pasteurization without sacrificing functional performance.
30. "Coagulate" means to become a soft or semi-solid mass 31. "Pasteurizing apparatus" means the equipment used to pasteurize the liquid egg product.
32. "Pasteurizing apparatus is sterilized" means that the equipment used to pasteurize the liquid egg product is made free of all viable microorganisms.
33. "Heating unit" means the heating section of the pasteurizing apparatus.
34. "Wherein every particle of liquid whole egg product is in contact with said heated surface for a total time less than the average resonance time of each particle in the heating unit" has its ordinary and accustomed meaning.
Plaintiff Sunny Fresh Foods, Inc. ("Sunny Fresh") is the declaratory judgment plaintiff in this case. The patents-in-suit are owned by defendant North Carolina State University ("NCSU") and are exclusively licensed to defendant Michael Foods, Inc. (collectively "Michael Foods"). The parties bring the present proceeding pursuant to Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed.Cir.1995), aff'd, 517 U.S. 370, 387, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), requesting the court to determine the disputed claim elements of the four patents-in-suit, U.S. Reissued Patent RE37,225E ("the '225 Patent"), U.S. Patent No. 4,808,425 ("the '425 Patent"), U.S. Patent No. 4,957,759 ("the '759 Patent"), and U.S. Patent No. 4,994,291 ("the '291 Patent").
The patents-in-suit relate to a process by which liquid egg products can be "ultrapasteurized" in order to extend their shelf life. The inventors developed a process by which liquid egg products could be "ultrapasteurized" at temperatures higher than conventionally was thought possible without destroying the functionality of the egg. The result was liquid egg products having a shelf life of four to thirty-six weeks.
By 1989, at least two other egg processors, Bartow Foods, Inc. ("Bartow") and Papetti's High Grade Egg Products ("Papetti's"), had introduced their own extended shelf life liquid egg products. Michael Foods sued Bartow and Papetti's for patent infringement. In March 1992, the jury in the Bartow case found that the '425 Patent was valid, enforceable and willfully infringed by Bartow. (Kempf Aff., Ex. 7.) Bartow then filed for bankruptcy. It did not appeal the jury verdict.
In the Papetti's case, the parties filed several summary judgment motions on liability issues. In a series of decisions, Judge Barry held that no reasonable juror could conclude that the NCSU patents were invalid, unenforceable or not infringed by Papetti's. (Kempf Aff., Ex. 8-9.) On appeal, the United States Court of Appeals for the Federal Circuit affirmed Judge Barry's findings. (Kempf Aff., Ex. 10.) The Papetti's case ultimately ended with a stipulated dismissal in 1997, after Michael Foods acquired Papetti's.
By 1994, Michael Foods was involved in two additional patent infringement lawsuits, one against Nulaid Foods, Inc. ("Nulaid") and the second against Sunny Fresh ("Sunny Fresh I"). During this time, competitors of Michael Foods filed several requests for reexamination of the NCSU patents with the patent office and several protests in a reissue proceeding involving one of the NCSU patents.
In December 1994, the Nulaid litigation was stayed pending the conclusion of the patent office proceedings. (Kempf Aff., Ex. 12.) Nulaid and Michael Foods subsequently negotiated a settlement agreement.
By November 1995, Michael Foods asserts that it was clear that at least some of the claims that were being adjudicated would differ from the claims that ultimately would be issued at the conclusion of the reexamination proceedings and that Sunny Fresh and Michael...
To continue reading
Request your trial
-
Occidental Fire & Cas. Co. of N.C. v. Soczynski
...estoppel where "no judicial acceptance" of the inconsistent position occurred); Sunny Fresh Foods, Inc. v. Michael Foods, Inc., 205 F. Supp. 2d 1077, 1090 (D. Minn. 2002) ("Judicial estoppel does not hinge on whether the party previously argued a position, but instead hinges on whether that......
-
Fire v. Soczynski
...706 N.W.2d at 507 (indicating a party must succeed “at trial” before the doctrine will apply); cf.Sunny Fresh Foods, Inc. v. Michael Foods, Inc., 205 F.Supp.2d 1077, 1090 (D.Minn.2002) (“Judicial estoppel does not hinge on whether the party previously argued a position, but instead hinges o......
-
Sunny Fresh Foods, Inc. v. Michael Foods, Inc., No. 04-1059 (Fed. Cir. 4/15/2005), 04-1059.
...its full claim construction order that the claim term "aseptic packaging" "may include ESL." Sunny Fresh Foods, Inc. v. Michael Foods, Inc., 205 F. Supp. 2d 1077 (D. Minn. 2002) (emphasis added). The trial court need not explain the implications of its construction rulings to the jury. This......
-
Basics of Intellectual Property Laws for the Antitrust Practitioner
...Oil & Ref. Co., 112 F. Supp. 455, 467 (N.D. Ill. 1953), aff’d , 225 F.2d 725 (Fed. Cir. 1955); Sunny Fresh Foods v. Michael Foods, 205 F. Supp. 2d 1077, 1098 (D. Minn. 2002). 154. Innova/Pure Water , 381 F.3d at 1118; Altiris , 318 F.3d at 1371; Invitrogen , 327 F.3d at 1367. Basics of Inte......
-
Table Of Cases
...133, 135. Sunmark, Inc. v. Ocean Spray Cranberries, Inc., 64 F.3d 1055 (7th Cir. 1995), 81. Sunny Fresh Foods v. Michael Foods, 205 F. Supp. 2d 1077 (D. Minn. 2002), 36. Suntiger, Inc. v. Scientific Research Funding Group, 189 F.3d 1327 (Fed. Cir. 1999), 23. Superior Fireplace Co. v. Majest......