Court Grants Summary Judgment Of Non-Infringement In K-Cup Patent Suit

Keurig, Inc. v. JBR, Inc., C.A. No. 11-11941-FDS, 2013 WL 2304171 (D. Mass. May 24, 2013) (Saylor, D.J.) [Summary Judgment of Non-Infringement]

Plaintiff Keurig, Inc. ("Keurig") filed suit contending that the coffee cartridges of Defendant JBR, Inc. ("JBR") infringed upon Keurig's three patents. The three patents are: (1) U.S. Patent No. D502,362 (the "'D362 patent"), a design patent directed to a disposable beverage filter cartridge, (2) U.S. Patent No. 7,347,138 (the " '138 patent"), a utility patent directed to an apparatus for brewing a single cup of coffee using a removable beverage cartridge, and (3) U.S. Patent No. 7,165,488 (the "'488 patent"), a utility patent directed to a method for use of the same apparatus. JBR moved for summary judgment of non-infringement on all three patents. For the reasons outlined below, the District Court (Saylor, D. J.) granted summary judgment confirming non-infringement of the 'D362 patent, the '138 patent, and the '488 patent.

The 'D362 Design Patent

Because the 'D362 patent is a design patent, the Court applied the "ordinary observer" test. Under that test, infringement occurs "if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives," an interested purchaser would find the two designs substantially the same and be induced to purchase a product believing it to be the commercial embodiment of the patented design. Gorham v. White, 81 U.S. 511 (1872). The Court also stated that the proper application of the test was the comparison of the JBR cartridge to the 'D362 patent, as opposed to the 'D362 patent's commercial embodiment.

In the context of pre-trial motions, infringement of a design patent requires two levels of analysis: (1) a threshold analysis to determine whether or not a prior art comparison is even necessary and (2), if necessary, a prior art comparison. For the threshold analysis, a prior art comparison will be deemed necessary if "the claimed and accused designs are not plainly dissimilar." This analysis requires the Court to compare the designs "side-by-side" and determine whether reasonable jurors could differ as to the designs being "plainly dissimilar." Although the threshold inquiry is highly fact-dependent, courts have found designs "plainly dissimilar" as a matter of law.

In this case, JBR urged the Court to disregard the similarities between the claimed design and JBR's cartridge because JBR regarded those similar features to be functional. The...