Kraft v. Kellog Co.: Objective Evidence of Non-ObviousnessSeptember 21, 2017

Earlier this month, the Federal Circuit decided Intercontinental Great Brands LLC (Kraft), v. Kellog Co., an appeal which arose from a patent infringement suit brought in the Northern District of Illinois. The district court granted summary judgment in favor of defendant—Kellog, finding every claim of U.S. Patent No. 6,918,532 (the ‘532 patent) to be obvious over the prior art.

Kraft’s Background of the Invention section of its patent asserted there was a need in the art for a rigid cookie container that was convenient to open and reclose after some of the cookies are consumed. Kraft explained the conventional approach of reclosing of the wrapper, once opened, included simply folding or rolling the end down and clipping the end to keep the wrapper closed. Kraft then disclosed that known reclosable seals were used for dispensing bags for wet tissue (wet wipes) or disposable cleaning wipes, but not yet for cookie containers.

In light of how Kraft presented the problem to be solved, one only needs to realize a traditional cookie container + a wet wipes container = the improved cookie container.

The Federal Circuit and District Court indicated as such. Even further still, each court bolstered its reasons for finding the claims of the ‘532 patent obvious by relying on another supplemental prior art reference for a sushi container. The Federal Circuit explained, “As the patent itself makes clear, the ‘frame’ element is shown by prior art, such as U.S. Patent No. 3,740,238 issued to Graham, which discloses a traditional cookie package with a frame to hold the cookies, described as prior art in the ’532 patent. And while the patent makes clear that non-food prior art showed a peel-back resealable package without a rigid structure (packaging for wet wipes), what the patent does not show, but the record in this litigation reveals, is prior art showing a peel-back resealable package with a rigid tray for food items (‘such as’ discrete items like sushi and canapés). . . .”

Unfortunately for inventors, sometimes the simplicity of or ease in conceiving an invention leads Examiners to think that the invention must be obvious. This is especially true where the technological field of the invention is mechanical in nature, like it is in the ‘532 patent.

U.S. courts and the U.S. Patent Office must consider any evidence submitted by applicants or patent owners in support of non-obviousness (also referred to as objective indicia of non-obviousness). For example, applicants can provide evidence of criticality or unexpected results, commercial success, long-felt but unsolved needs, failure of others, skepticism of experts, etc. This type of evidence can prove to be quite valuable in the mechanical arts, where Examiners are more susceptible to using hindsight in order to support conclusions of obviousness. Applicants can provide such information by including it in the specification of the initial patent application, or applicants can provide such information through an affidavit (often the “best practice”).

At issue in Kraft v. Kellog was whether there are some prima facie showings of obviousness so strong that not even the best forms of objective evidence of non-obviousness are able to overcome them. The Examiner in Kraft v. Kellog made an extremely strong prima facie showing of obviousness, and Kraft sought to overcome such a showing with extremely strong evidence of commercial success and copying by Kellog. Nevertheless, the majority opinion affirmed the decision made by the lower district court and held against Kraft. Accordingly, this holding may prove to be an unfortunate result for inventors, especially those in the mechanical arts, because it may hinder the usefulness of objective indicia of non-obviousness.


Gregory “Lars” Gunnerson is a Patent Agent in the Mechanical Patent Practice Group at McKee, Voorhees & Sease, PLC. For additional information please visit or contact Lars directly via email at


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