Campbell Soup v Gamon Plus
Campbell Soup v Gamon Plus
Campbell Soup Company, Campbell Sales Company, Trinity Manufacturing, LLC v. Gamon Plus, Inc.
Nos. 2018-2029, 2018-2030 Fed. Cir. September 26, 2019 Before Chief Judge Prost, with Circuit Judges Newman and Moore.
Opinion for the court filed by Circuit Judge Moore. Dissenting opinion filed by Circuit Judge Newman.
Appellants appealed the decisions of the Patent Trial and Appeal Board holding Appellants did not demonstrate that the claimed designs of U.S. Patent Nos. D612,646 and D621,645 would have been obvious over U.S. Patent No. D405,622 (“Linz”) and G.B. Patent Application No. 2,303,624 (“Samways”). The court held that 1) substantial evidence did not support the Board’s finding that Linz is not a proper primary reference, and 2) substantial evidence supported the Board’s finding that Samways is not a proper primary reference. The court noted that “[t]his case presents the unusual situation where we reverse the Board’s factual finding.”
“To identify a primary reference, one must: ‘(1) discern the correct visual impression created by the patented design as a whole; and (2) determine whether there is a single reference that creates ‘basically the same’ visual impression.’ Durling v. Spectrum Furniture Co., 101 F.3d 100, 103 (Fed. Cir. 1996). If a primary reference exists, related secondary references may be used to modify it. Id.”
Finding that “the ever-so-slight differences in design, in light of the overall similarities, do not properly lead to the result that Linz is not ‘a single reference that creates ‘basically the same’ visual impression as the claimed designs.’” The majority reversed the Board and found that Linz is a proper primary reference. The conclusion that the parties did “not dispute that Linz’s design is made to hold a cylindrical object in its display area” seemed to be a material factor in the holding.
The court accepted the Board’s findings of fact with regard to Samways, stating that “Samways has a dual dispensing area, compared to the single dispensing area of the claimed designs, and has a front label area with different dimensions that extends across both dispensing areas. Given these differences, substantial evidence supports the Board’s finding that Samways does not create basically the same visual impression as the claimed designs.”
Judge Newman dissented from the majority of Judges Prost and Moore with regard to the Linz patent. Judge Newman stated that majority opinion was based upon a “judicial insertion of the missing cylindrical object,” which is “not in accordance with design patent law.” Judge Newman agreed with the Board that adding the can to Linz improperly molds concepts of utility obviousness into design patent obviousness analysis. Judge Newman opined that, since the cylindrical object was missing, Linz did not create basically the same visual impression. Therefore, Linz did not qualify as a primary reference.
Read more: Federal Bar member attorneys may access the full case summary by registered patent attorney B.C. “Bill” Killough in the October 2019 issue of Federal Circuit Case Digest
B.C. Killough is a registered patent attorney based in Charleston, SC. On behalf of his clients, Bill has obtained more than 300 United States patents, participated in prosecuting more than 100 foreign patent applications and he has filed more than 1000 trademark applications with the US Patent and Trademark Offices.