Court Holds Patent For Method Of Making Pre-Cooked Bacon Is Indefinite

Author:Mr Clyde Shuman
Profession:Pearl Cohen Zedek Latzer Baratz

A federal judge in Delaware has held that a patent directed to a method of producing pre-cooked sliced bacon on an industrial scale, does not specify how one should determine whether it resembles pan-fried bacon, thus rendering the patent invalid as indefinite.

In HIP Inc. v. Hormel Foods Corporation et al., case number 1:18-cv-00615 (D. Del.), plaintiff HIP sued Hormel and others for infringement of U.S. Patent No. 9,510,610, entitled "Process for producing precooked bacon slices." Defendants counterclaimed, inter alia, that the '610 patent was invalid as indefinite, and moved for expedited summary judgment on that basis.

Granting Defendants' motion, the court focused on language in the preamble to the two independent claims, namely, "[a] process ... to produce a pre-cooked sliced bacon product resembling a pan-fried bacon product." The court found that the claims did not define or otherwise clarify the scope of the disputed term "resembling a pan-fried bacon product," and the patent's specification provided two potential bases for determining whether precooked bacon "resembl[es] ... pan-fried bacon."

That is, although the specification described five "significant organaleptic [sic] differences between the product produced by a continuous microwave process versus a traditional home-fried product ... [namely] different texture, mouth feel, bite, appearance, and color," the specification did not define or identify specific criteria for measuring or determining the texture, mouth feel, bite, appearance, or color of pan-fried bacon. In addition, the specification did not identify objective criteria to distinguish pan-fried bacon from microwaved bacon.

The court specifically referred to testimony from HIP's expert, that the specification does not provide specific instruction for evaluating the five organoleptic characteristics to determine if a pre-cooked bacon product resembles a pan-fried bacon product, because " [the patent] relies on the person of ordinary skill to do that." The court also noted an admission by HIP's...

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