In 2004 my wife and I decided to do a crazy thing: take off six weeks from work and take a long vacation in the USA with our kids. OK, it wasn’t all fun and games – I did a fair amount of work on the trip – but we had plenty of vacation time, and in total drove about 4000 miles traversing much of the country and seeing all 5 Great Lakes.
One of the interesting things for me was just how many IP-related things we saw. Like the 19th-century lifeboat that we saw at Whitefish Point on Lake Superior, which bore a U.S. patent number. Or the exhibit on glass inventions at the Museum of Glass in Corning, New York, which included a display about the use various combinations of lenses to reduce what are known as chromatic aberrations. That particular technology was prior art in an opposition I was working on at the time. At the Smithsonian, we saw the Wright brothers' original airplane - a patentable invention if ever there was one - as well as examples of crystalline polymorphs, something that's occupied no small part of my professional life.
Then there was our visit to Niagra falls, where I delivered a letter to the U.S. and Canadian park authorities, telling them to cease and desist use of the term “Niagra” which was confusingly similar to my client’s mark for a well-known erectile dysfunction drug. Ok, I didn’t really deliver the letter. But the firm I worked for at the time did represent Pfizer in many seizures of counterfeit Viagra®.
Without a doubt, though, the best IP-related part of the trip was our visit to the Utz potato chip factory in Hanover, Pennsylvania. There’s an enclosed walkway over the production floor that enables visitors to take a self-guided tour and observe the manufacturing process. It’s pretty clear that considerable thought went into the machinery used to transport the chips during production and to package them, and no doubt over the years more than a few patents were issued for those devices. And we got free samples at the end of the tour, with OU kosher certification. Not bad. I highly recommend it for anyone traveling through Lancaster County. If you time it right, you can tour the Snyder’s of Hanover Pretzel factory on the same day for a clean sweep of the snack industry.
Near the entrance/exit of the Utz visitors’ gallery, there’s a display of vintage Utz products (or at least old-style packaging). So as we were leaving the premises, I took a picture of our kids next to the display. At which point our then-8-year-old son protested, “Daddy, the sign says no picture taking!” I explained that the sign meant you can’t take pictures of the production area, but there was nothing wrong with taking pictures by the display of old products. “Why don’t they want you to take pictures inside the factory?”, he asked. Well, I explained, they’re afraid that another potato chip company might send spies and find out how they make their chips. It’s called industrial espionage, I explained.
Without losing a beat, our son said, “Hey, I have an idea! Maybe I’ll go and work for Utz for a few years, then open my own potato chip factory!”
“You know,” I said to him, after I stopped laughing, “we help defend people like you. Sometimes we go after people like you!”
I mentioned that story because of this complaint filed yesterday in the Eastern District of Ohio. Snack Alliance and Shearer’s Foods allege that another company is infringing US 7,189,424 and US 7,416,755, which claim fried, crisp rice snack chips and processes for making them. Shearer’s markets rice snacks under the name “riceworks”, in several flavors; according to the plaintiffs, in making a competing product the defendant not only infringes the patents, but also uses the same names for several of the flavors and uses similarly colored packaging. Hence in addition to patent infringement the plaintiffs also allege unjust enrichment, federal false designation and unfair competition, and state deceptive trade practices and unfair competition claims. And who would that defendant be? None other than…Utz.
Below are pictures of Shearer’s products and Utz’s products, taken from the complaint. Whaddaya think?
I also want to take this opportunity to say for the record my son did NOT advise Utz in any way and received no compensation from Utz for consulting with regard to product development or any other matters. :-)