Ocean Duke’s Fish Run Afoul Of Patent

Posted on | May 22, 2008 | No Comments

2008-1364 Kowalski v. Ocean Duke
D/HI 04-cv-00055

Defendant Ocean Duke appeals a series of orders by Judge Barry Kurren denying its various post-trial motions on non-infringement, invalidity and damages.  A jury previously found that Ocean Duke willfully infringed 5,972,401 and awarded $2.2 million.

The ’401 patent is directed to a method of manufacturing tasteless super-purified smoke to treat seafood and meat before freezing.  Ocean Duke apparently imported fish from Bali that was treated at a facility that allegedly used the patented method.

After the jury verdict, the court dealt quickly with several post trial motions and issues.

Infringement:  The court affirmed the jury’s finding of infringement, noting that the evidence offered by Kowalski sufficiently suggested that the Bali facility used the claimed process.

Indefiniteness:  The court ruled that Ocean Duke failed to preserve this issue at trial as required under Rule 50, and therefore was precluded from raising it in a post-trial motion.

Written Description:  The specification discloses producing smoke in the 204° to 510° C range, although the claims use the term "heat" without limitation.  While the court acknowledged that the claims might be broader than the supporting disclosure, Gentry Gallery v. Berkline Corp., 134 F.3d 1473, 1479 (Fed. Cir. 1998), it found that Kowalski’s evidence showed that one of ordinary skill would have known that smoke could be produced in a greater range than disclosed.

Permanent Injunction:  The court entered a permanent injunction against Ocean Duke from infringing the ’401.  Ocean Duke was also enjoined from making, using, offering to sell, selling or importing food (including but not limited to fish):

• processed in accordance with U.S. Patent 6,331,322 (this patent is actually owned by PT Intisamudera Citra Perkasa, Ocean Duke’s Bali processor); and
• treated for color retention by any process in which carbon monoxide is derived from smoke generated by heating organic material.

The permanent injunction was actually issued after the notice of appeal was filed, but Ocean Duke opposed the injunction so it seems likely it will be added to the appeal.

Note: The court issued the permanent injunction, but it is not clear from the record whether the eBay factors were explicitly analyzed.

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