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Intellectual Property Insights from Fishman Stewart
Mini Article – Volume 24, Issue 5

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More than One Way to Slice a Potato?

By Kristyn Webb

National Potato Chip Day in the US was on March 14, 2024. We hope you celebrated accordingly. We celebrated by reading up on an ongoing patent infringement lawsuit between two potato chip manufacturers.

The dispute began in 2016 when chip-maker Simplot sued rival chip-maker McCain, alleging that McCain’s spiral-cut “Twisted Potato” design infringed Simplot’s design patent US D640036 for a “Spiral Potato Piece.” A few months later, McCain counter sued alleging that Simplot’s spiral-cut “Sidewinders” infringed McCains’ design patent US D720916 for a “Root Vegetable Product.” McCain also alleged that Simplot’s chips infringed its utility patent US 6821540 for a “Process for Treating Vegetables and Fruit Before Cooking” involving the use of a “pulse electric field” to soften fruits and vegetables before they are cut.

Fast forward several years, and after numerous motions, responses, and replies, to January 2024: the court hearing the case in Idaho (the potato capital of the world), has denied the parties’ cross-motions for summary judgment, and concluded that the case should go to trial. 

The ‘540 patent refers to passing an electric current through the fruit or vegetable before cutting and cooking. The parties disagree about whether Simplot’s method of partially heating the potatoes in oil (“parfrying”) falls within the meaning of “cooking” or whether the patent only covers products that are totally cooked and ready to eat.

Regarding the competing design patents, the court concluded that it was best left for a jury to decide whether the parties’ respective design patents and the accused products are similar enough for any findings of infringement. So, after several years of litigation, 120 docket entries, and a 141-page ruling, it appears the case is (finally) headed to trial. We hope the jury will at least get a chance to sample the accused products!
Kristyn Webb is the Group Leader of Fishman Stewart’s Copyright Practice Group, and holds a Master’s Degree in Copyright Law from King’s College London.

Published March 22, 2024

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