Tuesday, June 19, 2012

Update on the Case of the Infringing Cookies

Last September I posted about a patent infringement lawsuit filed against many large, multi-national food companies ... and one tiny Milwaukee bakery:
"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 N├ęstle.  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).
Instead of answering the complaint, most of the defendants filed motions to dismiss, to sever (that is, try the cases against each defendant separately), and/or to transfer the case to a different venue.

Back in February, Judge Crabb granted the motions to sever, which had the effect of splitting the single case into six different cases. In the same order, she also determined that the same judge should handle each of the six cases—just not a judge in the Western District of Wisconsin. She noted that the Western District of Wisconsin had no particular connection to the case (except that the allegedly infringing cookies are sold there, which is true of every district in the country), and that—as I surmised—"Plaintiffs acknowledge that the primary reason they chose to file the case in this court was speed." Unfortunately, the Western District of Wisconsin seems to have lost its rocket sauce, as Judge Crabb pointed to the Court's "congested" court calendar. This seems to be the fate of rocket dockets: overcrowding.

It turns out, however, that Judge Crabb had been shopping the case around, and none other than Judge Richard Posner, of the Seventh Circuit Court of Appeals, had agreed to take on the pretrial and trial work for the cases, but only on the condition that they be transfered to the Northern District of Illinois in Chicago. None of the parties objected, so the case was severed into six cases and then all of them were transfered.

The first thing Judge Posner did? He consolidated the cases back together into a single case!

Judge Posner's initial case management order has several other interesting aspects. For example, here is the briefing schedule on motions:
Any motions filed during a week shall be filed by the close of business on Friday; responses are due the following Monday.
Enjoy your weekends, lawyers.


  1. Is it too late to take a bite out of their crime?

  2. I think that would just be double dipping at this point.

  3. The following Monday? Is that standard motion practice in the Northern District?


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