Low Calorie Fiber Gel Does Not Infringe No Calorie Claims

Posted on | March 20, 2008 | No Comments

2008-1231 Z Trim v. Fiberstar, Inc.
WD/WI 3:07-cv-00161

Plaintiff Z Trim appeals from Judge Barbara Crabb’s order granting defendants summary judgment of non-infringement.  Plaintiffs assert 5,766,662 directed to dietary fiber gels for reduced calorie foods.  All of the asserted claims require, in part, a:

noncaloric, gellable product consisting essentially of cellulosic, physically  disrupted cellular debris.

The court had previously construed "noncaloric" to mean "less than 0.5 calories per gram" which, according to the court, was justified "and probably even generous" given the specification’s examples of 0.1 calories/gram.  The court ruled that the product must meet the limitation in its dry form (based on the patent’s examples) and not in a diluted or wet state.  It was otherwise undisputed that defendant’s product had at least 0.76 calories/gram.

The court also rejected a doctrine of equivalents argument, finding (1) that the 0.5 upper limit already included the range of what the court considered an insubstantial difference and (2) extending it more would eliminate the claim term altogether.

As an additional basis of non-infringement, the court found it undisputed that defendant’s product contained a substantial amount of cell wall structure and non-cellulosic materials–items  that the court found were outside the definition of "physically disrupted cellular debris."  Thus, defendant’s product did not consist "essentially of" the claimed material.

The court also denied as moot defendant’s motion on invalidity, determining that the non-infringement ruling deprived the court of a "case or controversy."

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