Post Consumer Brands v. General Mills - Complaint

Case: 4:17-cv-02471 Doc.
#: 1 Filed: 09/26/17 Page: 1 of 20 PageID #: 1
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
POST CONSUMER BRANDS, LLC, )

)
Plaintiff, )
) Case No.
v. )
) JURY TRIAL DEMANDED
GENERAL MILLS, INC., and )
GENERAL MILLS SALES, INC., )
)
Defendants. )
COMPLAINT
Plaintiff Post Consumer Brands, LLC (Post) states as follows for its Complaint against
Defendants General Mills, Inc. (GMI) and General Mills Sales, Inc. (GMS) (GMI and GMS
may be referred to collectively as GM):
NATURE OF THE ACTION DESIGN PATENT INFRINGEMENT
1. Post is the market leader for breakfast cereals sold in bags. Post has worked hard
to develop quality products and merchandising systems to improve the consumers buying
experience for bagged cereal products. In 2016, Post launched an innovative new plastic
merchandising system for displaying its bagged cereals on grocery store shelves. Each
merchandising system was marked Patent Pending because of Posts pending patent
applications. In early 2017, GM brought virtually the same plastic merchandising
system design to market with its own, recently-introduced line of bagged cereals:
Post Divider GM Divider

Case: 4:17-cv-02471 Doc. #: 1 Filed: 09/26/17 Page: 2 of 20 PageID #: 2
BACKGROUND
2. In 2015, Post Holdings, Inc. (the St. Louis-based parent company of Plaintiff Post
Consumer Brands, LLC) acquired MOM Brands Company, LLC, a smaller breakfast cereal
manufacturer that for years has produced a successful line of value-priced bagged cereals under
its Malt-O-Meal brand. From the time Malt-O-Meal bagged cereals were first launched in the
1970s, competitors in the industry including GM criticized Malt-O-Meal bagged cereals as
inferior quality products and as being too big for store shelves. However, as boxed cereal sales
have declined recently, Malt-O-Meal bagged cereal sales have continued to grow. Post attributes
this growth to the value and quality of Posts products and Posts dedication to innovation in this
area as a whole. GM has now sought to capitalize on Posts bagged cereal success by rushing to
enter the bag cereal market with a copycat merchandising system that imitates Posts innovative
divider and merchandising system (the Post Divider and the Post Merchandising System)1
for bagged cereals.
3. As explained in greater detail below, Post invested substantial time, money and
research in developing the Post Merchandising System. When the Post Merchandising System
came to market in 2016, no other merchandising system like it existed on the market. It was and
is a revolutionary departure from previous shelf merchandising systems, including those used
with bagged cereals. The innovative nature of the Post Divider has been recognized and
appreciated not only from a consumer and retailer standpoint, but also by the United States
Patent and Trademark Office (USPTO), which on September 26, 2017 issued U.S. Patent No.
1The 091 patent claims ornamental features of the Post Divider. Multiple dividers work together to create the Post
Merchandising System.
-2-
D798,091 (the 091 patent) to Post.2 GMs use of the ornamental design claimed in the 091
patent is an infringing and unauthorized use.
4. This is an action for patent infringement under the patent laws of the United
States, Title 35 of the United States Code, arising from GMs infringement of the 091 patent by
its manufacture, use, offer for sale, sale in and/or importation into the United States of a copycat
merchandising system for bagged food items, including bagged cereals.
5. Post seeks injunctive relief and has been damaged monetarily in an amount to be
determined at trial. Further, Post seeks to recover all other recoverable fees and costs.
PARTIES
6. Post is a Delaware limited liability company formed in 2016 with a principal
place of business at 2503 S. Hanley Road, St. Louis, Missouri 63144. See Exhibit A. Posts
parent company, Post Holdings, Inc., is located in St. Louis, Missouri.
7. Upon information and belief, GMI is a Delaware corporation with a place of
business located at 1 Red Devil Road, Hannibal, Missouri 63401. See Exhibit B.
8. Upon information and belief, GMS is a Delaware corporation with a place of
business located at 1 Red Devil Road, Hannibal, Missouri, 63401. GMS is registered to do
business in Missouri and has appointed a registered agent in Missouri. See Exhibit C. Upon
information and belief, GMS has employees and hires and directs contractors and/or agents in
Missouri. Upon information and belief, GMS has substantial annual sales of GMS products in
Missouri.
JURISDICTION AND VENUE
2In addition to the 091 patent, Post has received two other design patents on the Post Dividers used in the Post
Merchandising System.
-3-
9. Posts claims arise under the patent laws of the United States, 35 U.S.C. 1 et
seq. Subject matter jurisdiction exists pursuant to 28 U.S.C. 1331 and 1338(a) (patents).
10. This Court has personal jurisdiction over GMI and GMS. Upon information and
belief, GM owns, uses, or possesses a physical place of business in this judicial district located at
1 Red Devil Road, Hannibal, Missouri 63401. Upon information and belief, GM owns, uses, or
possesses other real estate in Missouri. GM has also committed the tortious acts complained of
herein in Missouri, including but not limited to the making, using, selling, or offering for sale
infringing products accused herein, and directed its infringing products at residents in the State
of Missouri and in this judicial district. Attached hereto as Exhibit D is a true and correct copy
of a photograph of the infringing products in use at a Walmart store located in Arnold, Missouri,
in this judicial district. GM distributes its infringing products within this judicial district,
including at Walmart stores in the St. Louis area. Further, Posts claims arise out of or relate to
GMs activities in Missouri.
11. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391 and 1400(b)
because GM has committed acts of infringement in this judicial district where the infringing
product can be found, and has at least one regular and established physical place of business in
this judicial district located at 1 Red Devil Road, Hannibal, Missouri 63401 (depicted below).
See also Ex. B.
-4-
GM also does business in this judicial district through a permanent and continuous presence
here. Upon information and belief, GM has employees and pays contractors and/or agents in this
judicial district, including individuals who work with the infringing products in this judicial
district, and who oversee and conduct installation of the infringing merchandising systems in
retail grocery stores, such as Walmart. See Ex. D, Photograph of Infringing Product in Arnold,
Missouri.
FACTS COMMON TO ALL COUNTS
Post
12. Post is a leading manufacturer and distributor of branded ready-to eat (RTE)
cereals, and markets and sells its RTE cereals in retail and grocery stores throughout the United
States.
13. The RTE breakfast cereal category is one of the most prominent and competitive
categories in the food industry.
14. Posts RTE cereal brands include Honey Bunches of Oats, Pebbles, Great Grains,
Grape-Nuts, Post Shredded Wheat, Honeycomb, Golden Crisp, Post Raisin Bran, Alpha-Bits,
Moms Best, and Malt-O-Meal. Some of Posts cereal brands, including many of the Malt-O-
Meal branded cereals, are packaged and sold in plastic bags.
-5-
15. Posts competitors, including GM, have criticized Posts Malt-O-Meal bagged
cereal line to customers and investors for years, believing Posts Malt-O-Meal bagged cereal to
be inferior and lower quality cereal.
16. For the past several years, sales of RTE boxed cereal have been declining, but
sales of RTE bagged cereal have been growing.
17. Post has achieved a great deal of commercial success with its RTE cereals that are
offered in bags, and has sold and continues to sell such products, through retailers across the
nation, to millions of households.
The Problem Post Solved
18. Historically, Posts bagged cereals were displayed in grocery stores using wire
bins or similar partitions with horizontal, rectangular product signage:
-6-
Those systems had several disadvantages. It was difficult to display the bagged cereals in a way
that consumers could quickly see the bags of cereal actually contained in the bins behind the
front panel. Bins appeared empty when one or two bags still remained, because the remaining
bags were obstructed from view by the horizontal banner-like signage shown in the below
photos. This problem was particularly noticeable on the top shelves. Further, the horizontal
banner-like signage did not fully distinguish Posts bagged cereals from competitors bagged
cereals, and was not effective in clearly communicating the specific product offerings to
consumers. A further disadvantage was that the wire bins were heavy, had many components,
did not efficiently use shelf space, and were difficult and expensive to install and adjust.
19. Over the course of several years, Post invested significant resources in the
development of a new merchandising system design for its leading brand of bagged cereals,
Malt-O-Meal. The Post Merchandising System has an open front and vertically-oriented,
trapezoidal front panel that allows for bagged cereal to be better organized and displayed to
consumers on store shelves, and also allows for consumers, store employees, or others to easily
see behind the front panel to discern the brand of cereal. Post included ornamental features on
-7-
the Post Divider and has applied for and received United States design patents on these
ornamental features, including the 091 patent.
20. The Post Divider features a front panel having a novel and distinctive ornamental
trapezoidal shape that was inspired by the trapezoidal shape of Posts well-known Malt-O-Meal
logo, shown below:
21. The Post Divider is a plastic, transparent divider (depicted below):
When installed, the Post Merchandising System allows for bagged cereals to be neatly aligned
and provides the consumer an easy and efficient shopping experience:
-8-
22. The ornamental trapezoidal front portion of the Post Merchandising System also
includes a clear cover for inserting vertical product image panels (PIPs) to display the brand of
cereal. The product image panels identify the specific bagged cereal product housed in the Post
Merchandising System and display the brand of the cereal to consumers. The colored, cardboard
product image panels are designed specifically to fit coextensively from edge-to-edge and top-to-
bottom with the uniquely dimensioned trapezoidal front portion of the Post Merchandising
System.
23. A Post Divider with a product insert panel installed in the trapezoidal front
portion is depicted below:
-9-
24. To highlight the improvements in Posts new design, Posts old wire
merchandising system (used prior to 2016) is depicted below next to the new Post Merchandising
System:
25. Post began using the Post Merchandising System in connection with the sale of its
bagged cereal products in 2016. Since that time, the Post Merchandising System has been used
in the sale of Posts bagged cereals throughout the United States, including at various grocery
retailers such as Walmart, Hy-Vee, Meijer, and Kroger stores. The Post Merchandising System
has improved sales of Posts bagged cereals since June 2016.
26. Because the Post Merchandising System optimizes the shelf space and functions
well with shorter stacks of cereal bags, Post is able to add a fifth shelf to the bagged cereal
section and stock 25% more bagged cereals on shelves than with the old wire merchandising
system. The Post Merchandising System has improved the shopability and appearance of
Posts bagged cereals for consumers and, in turn, has attracted new consumers and broadened
Posts customer base. The Post Merchandising System has also resulted in more repeat
purchasers of Posts bagged cereals. Additionally, the Post Merchandising System has driven
positive visual impact at the shelf and helped to dispel the notion that Posts bagged cereals are
- 10 -
inferior products as compared to boxed cereals. The ornamental design of the Post Divider,
which was inspired by the logo, creates goodwill and brand awareness for Post.
Posts Design Patent
27. Prior to launching the new design, Post applied for patent protection with respect
to the Post Divider used in the Post Merchandising System, which resulted in the issuance of the
091 patent on September 26, 2017. Post is the owner by assignment of the 091 patent.
28. The 091 patent is valid, enforceable, and duly issued in compliance with Title 35
of the United States Code. True and correct copies of the issue notification for the 091 patent
and allowed claim of the 091 patent are attached hereto as Exhibit E.3
29. The Post Merchandising System has been marked Patent Pending and otherwise
marked in accord with 35 U.S.C. 287.
GMs Infringing Activities
30. GM manufactures and sells RTE cereals. Historically, GM has sold breakfast
cereal only in traditional paperboard cartons, not in larger plastic bags like the ones offered by
Malt-O-Meal. Upon information and belief, in early 2017, GM began to package and sell some
of its RTE cereal brands in plastic bags.
3The 091 patent issued on September 26, 2017, just before this Complaint was filed. Post will supplement Exhibit
E with a true and correct copy of the 091 patent when it is printed.
- 11 -
31. GM and Post are direct competitors in the RTE breakfast cereal category in the
food industry. GM is the second largest seller of RTE cereals in the United States, and Post is
the third largest seller. GM and Post deal in the same channels of trade and both do substantial
business in the same stores. Stores generally sell all cereal products in the same aisle and display
Posts bagged cereals near GMs bagged cereals.
32. After Post began displaying its bagged cereals using the Post Merchandising
System at stores across the nation, GM emerged with its own divider and divider system (the
Infringing Divider and the Infringing Merchandising System) for its bagged cereals in early
2017. The divider used in the Infringing Merchandising System copies the Post Merchandising
System, the Post Divider, and infringes Posts 091 patent:
- 12 -
33. The Infringing Divider is depicted below as compared to the Post Divider and the
ornamental design claimed in the 091 patent.4
POST DIVIDER INFRINGING DIVIDER
FIGURES OF 091 PATENT INFRINGING DIVIDER
4The solid lines depicted in the figures of the 091 patent represent the design claimed in the 091 patent. The
dashed lines depicted in the figures of the 091 patent represent unclaimed environment and form no part of the
claimed design.
- 13 -
- 14 -
34. Without Posts authorization, GM has made, used, sold, offered for sale, and/or
imported into the United States the Infringing Merchandising System that infringes the 091
patent. Upon information and belief, GM has implemented the Infringing Merchandising System
at retail stores across the United States.
35. An ordinary observer, familiar with the prior art in the field, would perceive the
overall appearance of the design of the 091 patent and the design of the Infringing Divider and
Infringing Merchandising System to be substantially the same. Such an ordinary observer would
be deceived into believing that the Infringing Divider and Infringing Merchandising System are
the same as the design claimed in the 091 patent.
36. The 091 patent protects several novel and ornamental aspects of the Post
Merchandising System design. These ornamental features are illustrated in Figures 1-7 of the
091 patent.
37. The ordinary observer, informed by the relevant prior art, would be misled by the
Infringing Divider and Infringing Merchandising System into believing that GM is authorized to
distribute products that copy the ornamental designs claimed in the 091 patent.
38. The Infringing Divider features the claimed designs of the 091 patent.
39. On store shelves, the Infringing Merchandising System (depicted on the next page
on the right) is often used immediately adjacent to the Post Merchandising System (depicted on
the next page on the left):
- 15 -
40. GMs imitation of the Post Merchandising System dilutes the uniqueness of
Posts overall marketing and brand, harming Post beyond infringement of the 091 patent.
41. Because of the proximity and similarity of the products and merchandising
systems, customers, store employees and/or vendors stocking the parties cereals on shelf have
erroneously placed GMs bagged cereals into the Post Merchandising System (depicted below)
and Posts bagged cereals into the Infringing Merchandising System:
- 16 -
42. The dimensions of the front trapezoidal panel of the Infringing Divider and the
Infringing Merchandising System are virtually identical to the dimensions of the trapezoidal
front panel of the Post Merchandising System. Thus, Posts product image panels for its branded
cereals, which are designed specifically to fit and be used exclusively with the Post
Merchandising System, have been inserted into the front panels of the Infringing Merchandising
System. Similarly, GMs product image panels, which have virtually identical dimensions, have
been inserted into the front panels of the Post Merchandising System:
Posts Contacts with GM
43. In late February 2017, Post first became aware that GM was making and using the
Infringing Merchandising System.
44. On March 7, 2017 and May 17, 2017, Post, through counsel, sent letters to
William Miller, Chief IP Counsel for Defendant General Mills, Inc., advising that Post had filed
design and utility patent applications on the Post Divider and expressing Posts concerns that
GM had developed a potentially infringing design.
- 17 -
45. On June 20, 2017, Post, through counsel, sent another letter to counsel for
Defendant General Mills, Inc. and, in response to GM counsels request, provided some of the
design drawings covered by the then-pending design patent application for the 091 patent.
46. Upon information and belief, GM was aware of the Post Merchandising System
before it launched its Infringing Merchandising System. Post believes the evidence will show
that GM deliberately copied the Post Divider and the Post Merchandising System when it
selected and manufactured the Infringing Merchandising System.
COUNT I
GMS INFRINGEMENT OF THE 091 PATENT
47. Post incorporates by reference, as if fully set forth herein, paragraphs 1-46 of this
Complaint.
48. On September 26, 2017, the United States Patent and Trademark Office duly and
legally issued the 091 patent.
49. The 091 patent is directed to an ornamental design for a shelf divider for display
of bagged food items as shown in Figures 1 through 7 of the 091 patent.
50. Post is the owner of the entire right, title and interest in and to the 091 patent, by
assignment.
51. GM knew of Posts pending patent applications that issued as the 091 patent.
Upon information and belief, at least as early as the service of this Complaint, GM has been and
is infringing the 091 patent under one or more subsections of 35 U.S.C. 271.
52. GM has made, used, sold, and/or offered for sale within the United States, and/or
imported into the United States, one or more divider products, including but not limited to the
Infringing Divider used in the Infringing Merchandising System, that infringe the 091 patent.
The design of GMs Infringing Divider used in the Infringing Merchandising System, in the eye
- 18 -
of the ordinary observer, who is familiar with the prior art in the field, appears substantially
similar to the ornamental design of the 091 patent.
53. Upon information and belief, GM knew of Posts pending patent application that
issued as the 091 patent and has continued to make, use, sell, offer for sale, or import the
Infringing Merchandising System following notice of Posts patent rights.
54. GM has damaged and will continue to damage Post in an amount to be
determined at trial.
55. GM has irreparably injured Post and such injury will continue unless GM is
enjoined by this Court.
JURY TRIAL DEMANDED
56. Post hereby demands a jury on all jury triable issues.
PRAYER FOR RELIEF
WHEREFORE, Post prays for judgment against GM as follows:
A. Preliminarily5 and permanently enjoin GM and any person acting in concert with
it from further infringement of the 091 patent pursuant to 35 U.S.C. 283;
B. Declare that the 091 patent is valid, enforceable, and infringed by GM;
C. Award Post the profits of GM, in accordance with 35 U.S.C. 289, resulting from
GMs infringement of the 091 patent, actual damages to Post in an amount not
less than a reasonable royalty for GMs infringement, and other damages and
relief as allowed by 35 U.S.C. 284;
D. Order the removal from the marketplace and destruction of all of GMs products
that infringe the 091 patent;
5 Post will file a separate motion for preliminary injunction and accompanying memorandum.
- 19 -
E. Prohibit GM from further making, using, selling, offering for sale, or importing of
all of GMs products that infringe the 091 patent;
F. Treble the damages in accordance with the provisions of 35 U.S.C. 284;
G. Find the case to be exceptional and award appropriate relief thereunder;
H. Award Post reasonable attorneys fees;
I. Award Post interest and costs;
J. Order an accounting of GMs profits relating to the infringement of the 091
patent;
K. Order GM to pay Post damages for GMs willful infringement, since at least the
service of this Complaint;
L. Order GM to report to this Court of its compliance with the foregoing within
thirty (30) days of judgment; and
M. For such other and further relief that the Court deems just and proper.
Date: September 26, 2017 Respectfully submitted,
THOMPSON COBURN LLP
By: /s/ Steven E. Garlock

Steven E. Garlock, 38346MO
Matthew A. Braunel, 50711MO
Katherine E. Colvin, 65845MO
THOMPSON COBURN LLP
One US Bank Plaza
St. Louis, Missouri 63101
(314) 552-6000
(314) 552-7000 (fax)
sgarlock@thompsoncoburn.com
mbraunel@thompsoncoburn.com
kcolvin@thompsoncoburn.com
Attorneys for Plaintiff Post Consumer Brands, LLC
- 20 -
Case: 4:17-cv-02471 Doc. #: 1-1 Filed: 09/26/17 Page: 1 of 5 PageID #: 21
EXHIBIT A
Office of the Minnesota Secretary of State

Certificate of Authority
,Steve Simon, Secretary of State of Minnesota, do certify that: The following business
entity has duly complied with the relevant provisions of Minnesota Statutes listed below,
and is formed or authorized to do business in Minnesota on and after this date with all the
powers, rights and privileges, and subject to the limitations, duties and restrictions, set
forth in that chapter.
The business entity is now legally registered under the laws of Minnesota.
Name in Minnesota: POST CONSUMER BRANDS, LLC
Name in Home Jurisdiction: POST CONSUMER BRANDS, LLC
File Number: 865471200022
Minnesota Statutes, Chapter: 322C
Home Jurisdiction: Delaware
This certificate has been issued on: 01/06/2016
Steve Simon
Secretary of State
State of Minnesota
Work Item 865471200022

Original File Number 865471200022
STATE OF MINNESOTA
OFFICE OF THE SECRETARY OF STATE
FILED
01/06/2016 11:59 PM
Steve Simon
Secretary of State
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
Thomas A. Polcyn
314 552 6331 direct
tpolcyn@thompsoncoburn.com
March 7, 2017
VIA FEDERAL EXPRESS
William Miller
Chief IP Counsel
General Mills, Inc.
1 General Mills Blvd.
Minneapolis, MN 55426
Re: Shelf Partitions for Displaying Bagged Cereal Used by General Mills, Inc.
Dear Mr. Miller:
We represent Post Consumer Brands, LLC (Post) in certain legal matters.
It has come to our attention that General Mills, Inc. (General Mills) has started using shelf
partitions for displaying bagged cereal that are strikingly similar in appearance and design to
shelf partitions used by Post for its line of Malt-O-Meal branded bagged cereals.
Posts shelf partitions comprise a front panel with a novel and distinctive trapezoidal shape that
is intended to mimic the trapezoidal shape of Posts well-known Malt-O-Meal logo. We
understand that General Mills shelf partition includes a front panel having the same trapezoidal
shape.
We wish to put General Mills on notice that Post has several design and utility patent
applications pending before the U.S. Patent and Trademark Office, and corresponding patent
applications pending outside the U.S., which appear to cover General Mills shelf partitions.
Indeed, Posts shelf partitions have been marked with a Patent Pending notice. The many
similarities between Posts shelf partitions and the General Mills version, in particular the use of
a nearly identical trapezoidal front panel, seem to be more than mere coincidence.
6523818.1
William Miller
March 7, 2017
Page 2
For obvious reasons, Post is concerned about this and will be monitoring the situation closely. I
would ask you to look into the matter and suggest that General Mills take our intent to vigorously
protect our intellectual property rights into consideration in the further development and use of
its shelf partitions.
Sincerely,
Thompson Coburn LLP
By
Thomas A. Polcyn
Partner
TAP/sal
6523818.1
EXHIBIT G
Thomas A. Polcyn
314 552 6331 direct
May 17, 2017
VIA EMAIL (William.Miller@genmills.com) & FEDERAL EXPRESS
William Miller
Chief IP Counsel
General Mills, Inc.
Dear Mr. Miller:
I am following up on my March 7, 2017 letter, in which we advised you of Post Consumer

Brands (Post) intent to vigorously protect its intellectual property rights in its proprietary shelf
partitions for bagged cereals.
We have now learned that General Mills has started using the same strikingly similar shelf
partitions in the bagged cereal section of a Hy-Vee grocery store in Omaha, Nebraska. The
following photographs were taken last week by one of our retail sales representatives.
6562838.1
William Miller
May 17, 2017
Page 2
The photo on the left is General Mills shelf partition. The photo on the right shows General
Mills shelf partitions on the top two shelves, and Posts shelf partitions on the bottom three
shelves. As you can see, from a consumers perspective, the shelf partition designs are nearly
identical.
At least some, if not most, of the claims in Posts pending design and utility patent applications
appear to read on General Mills partition. Post is also concerned that this blatant reproduction
of its design, including the distinctive trapezoidal front panel, will mislead consumers. The
similarities are too substantial to be a coincidence, and suggest that General Mills has willfully
copied Posts design.
We are, of course, providing you with this advance notice of our position in an effort to avoid the
disruption and expense of a formal dispute. Therefore, we are requesting an explanation of
General Mills intentions and a commitment to modify your design.
Sincerely,
Thompson Coburn LLP
By
Thomas A. Polcyn
Partner
TAP/sal
cc: Jill Bollettieri, VP & General Counsel, Post Consumer Brands
6562838.1
EXHIBIT H
Thomas A. Polcyn
314 552 6331 direct
June 20, 2017
VIA EMAIL (greg.kaihoi@genmills.com)
Greg Kaihoi
Assistant General Counsel
General Mills, Inc.
Dear Greg:
Thank you once again for your time on the phone last Wednesday. Though we have some
important issues to work through, I thought it was productive to open a dialogue, and I
appreciate your professionalism.
During our call, I described some of the things Post is seeing in the marketplace as a result of
General Mills use of shelf partitions that are strikingly similar to Posts shelf partitions,
particularly when viewed from the front of the shelf, which is of course the consumers
perspective. As shown below, customers, store employees and/or vendors are putting General
Mills bags into Posts racks, and Post bags into General Mills racks.
6579719.1
Greg Kaihoi
June 20, 2017
Page 2
Even more troubling, as you can see below, Malt O Meal product labels are being inserted into
the front panel of General Mills shelf partitions, which has been made possible due to the fact
that the front panel of General Mills shelf partitions and Posts shelf partitions appear
substantially the same to the ordinary observer. They are virtually identical, both dimensionally
and proportionally.
6579719.1
Greg Kaihoi
June 20, 2017
Page 3
As I explained on our call, this is a major concern for Post, particularly in light of its significant
investment of resources in developing a proprietary display system. Frankly, this confusion at
shelf is a disservice to everyone, including General Mills.
During our call, you noted that it is difficult for you to respond meaningfully to our patent-related
concerns, or to counsel your client on design changes, without having issued patents in front of
you. While our patents have not yet been issued, we have received allowances on two design
patents, and a successful examination on a third design patent that will soon be allowed.
Drawings for those are enclosed for your review. We also have a pending utility patent
application that we are confident will result in allowed claims that read on General Mills shelf-
partitions, as currently configured.
For now, I suggest that you focus on the broadest of the three design patent applications, the
enclosure identified as Drawings#3.pdf, which claims the ornamental appearance of the front
portion (specifically the trapezoidal shape) of the shelf partition.
Once you have had a chance to review this additional information, and have had an opportunity
to confer with your client as needed, I suggest a follow up call. Let me know your availability for
early next week. Thank you.
Sincerely,
Thompson Coburn LLP
By
Thomas A. Polcyn
Partner
TAP/sal
cc: Jill Bollettieri, VP & General Counsel, Post Consumer Brands
6579719.1
FIG. 1
FIG. 2 FIG. 3
FIG. 4
FIG. 5
FIG. 6 FIG. 7
FIG. 8
FIG. 1
FIG. 2 FIG. 3
FIG. 4
FIG. 5
FIG. 6 FIG. 7
FIG. 8
FIG. 1
FIG. 2 FIG. 3
FIG. 4
FIG. 5
FIG. 6 FIG. 7
JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS

POST CONSUMER BRANDS, LLC GENERAL MILLS, INC. and GENERAL MILLS SALES, INC.
(b) County of Residence of First Listed Plaintiff St. Louis County County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Thompson Coburn LLP, One US Bank Plaza, St. Louis, MO 63101

(314) 552-6000
II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State
2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a 3 3 Foreign Nation 6 6

Foreign Country
IV. NATURE OF SUIT (Place an X in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC
130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))
140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment
150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking
151 Medicare Act 330 Federal Employers Product Liability 830 Patent 450 Commerce
152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation
Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and
(Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations
153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY 480 Consumer Credit
of Veterans Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards 861 HIA (1395ff) 490 Cable/Sat TV
160 Stockholders Suits 355 Motor Vehicle 371 Truth in Lending Act 862 Black Lung (923) 850 Securities/Commodities/
190 Other Contract Product Liability 380 Other Personal 720 Labor/Management 863 DIWC/DIWW (405(g)) Exchange
195 Contract Product Liability 360 Other Personal Property Damage Relations 864 SSID Title XVI 890 Other Statutory Actions
196 Franchise Injury 385 Property Damage 740 Railway Labor Act 865 RSI (405(g)) 891 Agricultural Acts
362 Personal Injury - Product Liability 751 Family and Medical 893 Environmental Matters
Medical Malpractice Leave Act 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation FEDERAL TAX SUITS Act
210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement 870 Taxes (U.S. Plaintiff 896 Arbitration
220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act or Defendant) 899 Administrative Procedure
230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRSThird Party Act/Review or Appeal of
240 Torts to Land 443 Housing/ Sentence 26 USC 7609 Agency Decision
245 Tort Product Liability Accommodations 530 General 950 Constitutionality of
290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION State Statutes
Employment Other: 462 Naturalization Application
446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration
Other 550 Civil Rights Actions
448 Education 555 Prison Condition
560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an X in One Box Only)
1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
35 U.S.C 271
VI. CAUSE OF ACTION Brief description of cause:
Patent Infringement
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: Yes No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
09/26/2017 /s/ Steven E. Garlock
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE
Print Save As... Reset

JS 44 Reverse (Rev. 06/17)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.
V. Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
ResetCase: 4:17-cv-02471 Doc. #: 1-10 Filed: 09/26/17 Page: 1 of 1 PageID #: 151
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI
POST CONSUMER BRANDS, )

, )
LLC
)
Plaintiff, )
)
v. ) Case No.
GENERAL MILLS, INC., and )
GENERAL MILLS SALES, INC. , )
)
Defendant, )
)
ORIGINAL FILING FORM
THIS FORM MUST BE COMPLETED AND VERIFIED BY THE FILING PARTY

WHEN INITIATING A NEW CASE.
THIS SAME CAUSE, OR A SUBSTANTIALLY EQUIVALENT COMPLAINT, WAS
PREVIOUSLY FILED IN THIS COURT AS CASE NUMBER
AND ASSIGNED TO THE HONORABLE JUDGE .
THIS CAUSE IS RELATED, BUT IS NOT SUBSTANTIALLY EQUIVALENT TO ANY
PREVIOUSLY FILED COMPLAINT. THE RELATED CASE NUMBER IS AND
THAT CASE WAS ASSIGNED TO THE HONORABLE . THIS CASE MAY,
THEREFORE, BE OPENED AS AN ORIGINAL PROCEEDING.
NEITHER THIS SAME CAUSE, NOR A SUBSTANTIALLY EQUIVALENT
COMPLAINT, HAS BEEN PREVIOUSLY FILED IN THIS COURT, AND THEREFORE
MAY BE OPENED AS AN ORIGINAL PROCEEDING.
The undersigned affirms that the information provided above is true and correct.
Date: 09/26/2017 /s/ Steven E. Garlock

Signature of Filing Party

Post Consumer Brands v. General Mills - Complaint

Enviado por

Dados do documento

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Post Consumer Brands v. General Mills - Complaint

Enviado por

Direitos autorais:

Formatos disponíveis

Case: 4:17-cv-02471 Doc.

#: 1 Filed: 09/26/17 Page: 1 of 20 PageID #: 1

UNITED STATES DISTRICT COURT

POST CONSUMER BRANDS, LLC, )

may be referred to collectively as GM):

NATURE OF THE ACTION DESIGN PATENT INFRINGEMENT

applications. In early 2017, GM brought virtually the same plastic merchandising

Post Divider GM Divider

1970s, competitors in the industry including GM criticized Malt-O-Meal bagged cereals as

for bagged cereals.

patent is an infringing and unauthorized use.

merchandising system for bagged food items, including bagged cereals.

6. Post is a Delaware limited liability company formed in 2016 with a principal

parent company, Post Holdings, Inc., is located in St. Louis, Missouri.

7. Upon information and belief, GMI is a Delaware corporation with a place of

8. Upon information and belief, GMS is a Delaware corporation with a place of

JURISDICTION AND VENUE

GMs activities in Missouri.

See also Ex. B.

FACTS COMMON TO ALL COUNTS

categories in the food industry.

Meal branded cereals, are packaged and sold in plastic bags.

be inferior and lower quality cereal.

sales of RTE bagged cereal have been growing.

nation, to millions of households.

The Problem Post Solved

bins or similar partitions with horizontal, rectangular product signage:

ornamental features, including the 091 patent.

logo, shown below:

21. The Post Divider is a plastic, transparent divider (depicted below):

and provides the consumer an easy and efficient shopping experience:

portion is depicted below:

has improved sales of Posts bagged cereals since June 2016.

Posts Design Patent

marked in accord with 35 U.S.C. 287.

GMs Infringing Activities

of its RTE cereal brands in plastic bags.

Posts bagged cereals near GMs bagged cereals.

System, the Post Divider, and infringes Posts 091 patent:

ornamental design claimed in the 091 patent.4

POST DIVIDER INFRINGING DIVIDER

FIGURES OF 091 PATENT INFRINGING DIVIDER

at retail stores across the United States.

the same as the design claimed in the 091 patent.

the next page on the left):

and Posts bagged cereals into the Infringing Merchandising System:

Posts Contacts with GM

Infringing Merchandising System.

GM had developed a potentially infringing design.

selected and manufactured the Infringing Merchandising System.

legally issued the 091 patent.

of bagged food items as shown in Figures 1 through 7 of the 091 patent.

similar to the ornamental design of the 091 patent.

Infringing Merchandising System following notice of Posts patent rights.

54. GM has damaged and will continue to damage Post in an amount to be

enjoined by this Court.

JURY TRIAL DEMANDED

56. Post hereby demands a jury on all jury triable issues.

PRAYER FOR RELIEF

WHEREFORE, Post prays for judgment against GM as follows:

it from further infringement of the 091 patent pursuant to 35 U.S.C. 283;

relief as allowed by 35 U.S.C. 284;

that infringe the 091 patent;

all of GMs products that infringe the 091 patent;