Friday, September 16, 2011

"I think it's got to be a mistake somehow."

That's what the owner of East Side Ovens, a small wholesale bakery in Milwaukee, said about being sued for patent infringement. The allegation? That the bakery infringes U.S. Patent No. 5,843,497 by using a certain "fat composition" in its cookies, "including, but not limited to, cookies sold as East Side Ovens Cranberry Orange Cookies." That's right -- we're talking infringing delectables here.

East Side Ovens is one of about a dozen defendants in all.  But the other nefarious sweet-secret swindlers are giant corporations such as Keebler, Pillsbury, and Néstle.  So why is plaintiff Willy Wonka GFA Brands (doing business as SmartBalance) going after this small fry?  Are the Cranberry Orange Cookies selling like hotcakes? No. Are they an example of a particularly egregious example of the alleged infringement? No -- the complaint implies that all of the 
defendants purchase the allegedly infringing ingredient from the same source (though it isn't clear what that source is).

No, East Side Ovens' sin is simply that it is based in Wisconsin.  It's almost certainly the case that the only reason they were added as a defendant was so that the plaintiffs could file the case in the Western District of Wisconsin -- a famous "rocket docket" for patent cases -- and withstand a motion to change venue filed by the big multinational defendants (all of whom, along with both plaintiffs, reside outside of Wisconsin).

Notably, this practice may be coming to an end.  Just today, President Obama signed into law the America Invents Act.  This new law makes major reforms to patent law, including changing the U.S. system from a "first to invent" system to a "first to file" system.  But one of the minor reforms is that it prohibits the practice of joining defendants to a patent infringement lawsuit merely because they infringe the same patent. This had been a notorious tool of so-called patent trolls, who've been known to sue 25 or more unrelated defendants in a single case.

But the new law comes too late for East Ovens.  So it looks like they'll be dealing with the Slugworths of the world...


See this post.

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