Eastern District of Wisconsin finds sausage tray obvious using “common sense”on summary judgment motion for noninfringement

Johnsonville v Klement, 2020 WL 1492983 (E.D. Wis. Mar 27, 2020).

Johnsonville owns USD 633,754, directed to the ornamental design of a sausage tray, wherein the only solid line features are the curved end walls.  Fig. 12 of the ‘754 patent is illustrative:






Johnsonville sued Klement alleging infringement of the ‘754 patent, and Klement defended with charges of inequitable conduct and invalidity.  Both parties moved for summary judgment, with Klement requesting summary judgement on the issue of invalidity.  Klement did not file a formal summary judgment motion.

The Court held the ‘754 patent obvious over three references – US 3,761,011, USD 198,544 and Johnsonville’s own prior tray:










The Court found that the only difference between the primary reference and the claimed tray was that the end walls of the claimed tray are curved, whereas those of the ‘011 patent are flat.  Acknowledging that the modification could only be made if the walls in each piece of prior art are so related that the use of curves in one would suggest the use of curves in the other, the Court found that the differences would not render such use any less obvious:

It is true that the concave-curving, “inner” wall of the ‘011 patent differs in that it is not of even height; it is tallest at the middle and tapers to meet the floor of the tray at the corners.  It is also true that the distance between the curved walls of the ‘011 patent is less than the distance between the end walls of the ‘544 patent.  But these are not differences that would make any less obvious the application of the ‘011 patent’s curves to the ‘544 patent’s end walls.  We are in the realm of common sense.  I conclude that in light of the end walls of the ‘544 patent, Johnsonville’s own prior try, and the ‘011 patent, the end walls claimed in Johnsonville’s ‘764 patent are obvious and the patent is therefore invalid.

Interestingly, the Court cited Perfect Web Technologies, Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1328 (2009) in support of the use of common sense, though Perfect Web is a utility patent case.