Viskase

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Viskase Cos., Inc. v. World Pac Int’l AG, No. 09 C 5022, Slip Op. (N.D. Ill. Feb. 3, 2011) (Bucklo, J.).
Judge Bucklo granted declaratory judgment plaintiff Viskase’s motion for summary judgment of invalidity and denied the remaining cross-summary judgment motions as moot in this patent dispute involving food casings that prevent the loss of weight, flavor and taste. The Court previously construed “impermeable” to mean that the casing did not allow any measurable loss of weight, flavor or moisture. Instead of addressing each of Viskase’s arguments element-by-element, declaratory judgment defendant World Pac put “all of its eggs in one basket.” The Court denied World Pac’s earlier summary judgment motion regarding infringement largely because of World Pac’s failure to test the alleged impermeability of Viskase’s accused products. World Pac, therefore, argued that because Viskase had not tested sausages covered by the prior art patent, it could not succeed.
But the Court explained that “what is good for the goose is not always good for the gander.” The Court held that there was no authority requiring that a party test alleged anticipatory prior art patents to prove that they read on the asserted patent. While there was some appeal to World Pac’s argument, it was unsuccessful. An accused infringer is not required to test prior art products. Furthermore, World Pac’s own expert had conceded that the relevant claim elements of the patent-in-suit were disclosed in the prior art patent.
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Continue Reading Accused Infringer Need Not Test Prior Art Patented Products to Prove Invalidity

Viskase v. World Pac, No. 09 C 5022, Slip Op. (N.D. Ill. Oct. 15, 2010) (Bucklo, J.).
Judge Bucklo granted defendants’ motion to reconsider, ordering production of the “Merritt Memo” previously held to be privileged because it included litigation counsel. The Court held that litigation counsel, before becoming litigation counsel, was the principal conduit to opinion counsel and his opinion was sought in connection with opinion counsel’s analysis. The Court, however, held that no post-filing communications were discoverable in light of In re Seagate which provided post-filing protection where a preliminary injunction was denied.
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Continue Reading Trial Counsel’s Opinion – Related Documents Are Discoverable

Viskase Cos., Inc. v. World Pac Int’l. AG, No. 09 C 5022, Slip Op. (N.D. Ill. Aug. 9, 2010) (Bucklo, J.).
Judge Bucklo denied defendants’ motion for preliminary injunction based upon World Pac’s patent infringement counterclaim regarding impermeable sausage casings. Viskase’s research and design documents referenced “World Pac knock-off[s],” “World Pac replacement[s]” and “World Pac me-too” products. The key infringement issue was whether Viskase’s accused casings were “impermeable” as that term was construed by the Court. The parties set up a “classic battle of the experts” with competing testing disputing whether the accused sausage casing allowed a measurable weight loss, and therefore was permeable. While a jury would ultimately have to weigh the evidence, Viskase presented “more than insubstantial evidence” that the accused casings lost measurable weight. And Viskase’s testing was done outside of litigation, lending it additional credibility. World Pac also failed to present sufficient evidence regarding loss of flavor and taste, the other “impermeable” characteristics. Viskase, therefore, raised a substantial noninfringement question. Furthermore, World Pac did not put forth sufficient evidence to warrant a preliminary injunction. Because Viskase raised a substantial question regarding noninfringement, the Court declined to examine Viskase’s other defenses or the other element of a preliminary injunction.
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Continue Reading Preliminary Injunction Denied Because of Noninfringement Evidence

Viskase v. World Pac, Inc., No. 09 C 5022, Slip Op. (N.D. Ill. Sep. 9, 2010) (Bucklo, J.)
Judge Bucklo granted third party Kalle’s motion for a protective order and to quash plaintiff Viskase’s subpoena. Because the documents sought were created after the patent-in-suit’s filing date, they would have had little impact upon validity. Furthermore, Kalle was a competitor and its confidential information could not be protected from disclosure at trial. Finally, the volume of requested documents and the breadth of Fed. R. Civ. P. 30(b)(6) requests would have made compliance with the subpoena costly and burdensome.
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Continue Reading Third Party Competitor Need Not Comply With Onerous Subpoenas

Viskase Cos., Inc. v. World Pac Int’l AG, No. 09 C 5022, Slip Op. (N.D. Ill. May 18, 2010) (Bucklo, J.).
Judge Bucklo construed the claims in this patent case regarding food curing technologies for use in packing sausages and other processed foods. The following construction were of particular note:
The Court declined to construe “barrier casing” holding that “barrier” did not require construction beyond its ordinary meaning. The parties real dispute was over the term “impermeable” which the Court construed.
The Court construed “impermeable” as “having a low enough permeability or transmission rate to steam and/or gas to prevent a measurable loss of weight, flavor, and taste during customary production, cooking, and storage.” This construction required a lower permeability than any known in the industry because that is how the patentee defined impermeable in the specification noting that courts cannot redraft claims to avoid “nonsensical results.”
“Plastic Foils” was construed as “a self-supporting film or sheet of plastic.” Because the patent contemplated laminating the plastic foil, it has to be self-supporting because only self-supporting foils can be laminated.
The Court held that “woven” in “woven fibers, fabric, knits and fleece” modified only fibers, not fabric, knits or fleece.
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Continue Reading Court Will Not Rewrite Claims to Avoid Nonsensical Results