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.
![Upper and Lower Claim Limitations Leave Patent Owner Feeling Down | IP Law Firm | Harness IP Candy Images | Intellectual Property Law Firm | Harness IP](https://patents.hdp.com/wp-content/uploads/2020/08/Candy_Images.jpg)
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:
![Upper and Lower Claim Limitations Leave Patent Owner Feeling Down | IP Law Firm | Harness IP Candy Claim | Intellectual Property Law Firm | Harness IP](https://patents.hdp.com/wp-content/uploads/2020/08/Candy_Claim.jpg)
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.