August 27, 2020

Upper and Lower Claim Limitations Leave Patent Owner Feeling Down

The Topps Company, Inc. sued Koko’s Confectionery & Novelty for infringement of U.S. Patent No. 6,660,316 and for trade dress infringement.

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The Topp’s Company’s Juicy Drop Pop (top) and Koko’s Confectionery & Novelty’s Squeezy Squirt Pop (below)

The claims of Topp’s ‘316 patent required upper and lower chambers:

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On summary judgment, however, the district court found that while Koko’s Squeezy Squirt Pop had two chambers, they were not upper and lower chambers nor were they equivalent to upper and lower chambers. 

Directional references in patent claims such as upper and lower, left and right, top and bottom, etc., can cause problems that are best avoided altogether unless the directions are important. While Topps may still prevail on appeal, the wording of the patent claims has complicated their enforcement efforts.