Huhtamaki v. Blue Apple - Complaint

Case 1:18-cv-00531-EJL Document 1 Filed 11/27/18 Page 1 of 21
Alexander P. McLaughlin, ISB No. 7977

Melodie A. McQuade, ISB No. 9433
GIVENS PURSLEY LLP
601 W. Bannock Street
Boise, Idaho 83701
Telephone (208) 388-1200
Facsimile (208) 388-1300
alexmclaughlin@givenspursley.com
melodiemcquade@givenspursley.com
William B. Kircher, MO Bar No. 18743 (pro hac vice forthcoming)

Nathan Oleen, MO Bar No. 59043 (pro hac vice forthcoming)
Michael Owens, MO Bar No. 67002 (pro hac vice forthcoming)
HUSCH BLACKWELL LLP
4801 Main, Suite 1000
Kansas City, MO 64112
Telephone (816) 983-8000
Facsimile (816) 983-8080
Bill.Kircher@huschblackwell.com
nathan.oleen@huschblackwell.com
michael.owens@huschblackwell.com
Patrick D. Kuehl, MO Bar No. 52370 (pro hac vice forthcoming)

RIMON
4144 Pennsylvania Street
Kansas City, MO 64111
Telephone (816) 839-7471
Facsimile (816) 839-7471
patrick.kuehl@rimonlaw.com
14436208_1 [14489-2]
Attorneys for Plaintiff Huhtamaki, Inc.
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO
HUHTAMAKI, INC.,
Case No. 1:18-cv-531
Plaintiff,
COMPLAINT FOR DECLARATORY
vs. JUDGMENT OF NON-
INFRINGEMENT AND INVALIDITY
BLUE APPLE MARKETING, LLC d/b/a
BLUE APPLE ENVIRONMENTAL
SOLUTIONS, LLC,
Defendant.
COMPLAINT FOR DECLARATORY JUDGMENT

OF NON-INFRINGEMENT AND INVALIDITY - 1
Plaintiff Huhtamaki, Inc., for its Complaint for Declaratory Judgment of Non-
Infringement and Invalidity against Defendant Blue Apple Marketing, LLC d/b/a Blue Apple
Environmental Solutions, LLC, states and alleges as follows:
NATURE OF THE ACTION
1. This is an action for declaratory judgment of invalidity and non-infringement of
U.S. Patent Design Patent No. D697,370 (“the ’370 Patent”), titled “Segmented Food Plate.”
2. A copy of the ’370 Patent is attached to this Complaint as Exhibit A.
THE PARTIES
3. Plaintiff Huhtamaki, Inc. (“Huhtamaki’) is a Kansas corporation with its principal
place of business located at 9201 Packaging Drive, De Soto, Kansas 66018.
4. Huhtamaki manufactures and sells, among other things, disposable tableware,
packaging for consumer goods, and foodservice packaging.
5. Defendant Blue Apple Marketing, LLC, doing business under the assumed
business name Blue Apple Environmental Solutions, LLC (“Blue Apple”), is an Idaho limited
liability company with its principal place of business located at 3777 West Twilight Drive,
Boise, Idaho 83703.
6. Blue Apple represents that it makes and sells biodegradable and compostable
plates and lunch trays.
JURISDICTION AND VENUE
7. This Court has subject matter jurisdiction over these claims pursuant to 28 U.S.C.
§§ 1338, 1331, 2201 and 2202 because the Complaint states claims arising under an Act of
Congress relating to patents, including but not limited to 35 U.S.C. § 271, and seeks relief under
the Federal Declaratory Judgment Act.

8. This Court has personal jurisdiction over Blue Apple because it is incorporated
and maintains its principal place of business in Idaho.
9. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b) and 1391(c)
because the sole defendant resides in this judicial district.
10. A concrete, immediate, and justiciable controversy exists between Huhtamaki and
Blue Apple:
(a) On September 14, 2018, Blue Apple, through its counsel, sent a cease and
desist demand to Huhtamaki’s registered agent in Topeka, Kansas.
(b) Blue Apple’s demand asserted that Huhtamaki has sold, and continues to
sell, plates and trays that infringe Blue Apple’s ’370 Patent. Blue Apple requested Huhtamaki
verify in writing that it had ceased selling the allegedly infringing products by October 8, 2018,
and provide Blue Apple an accounting of sales and revenues of all such products.
(c) Blue Apple also attached to its September 14 demand a draft Complaint
alleging one count for infringement of the ’370 Patent against Huhtamaki.
(d) Blue Apple represented that it would file the attached Complaint in the
United States District Court for the Eastern District of Texas if Huhtamaki failed to provide a
timely and satisfactory response to Blue Apple’s demand.
(e) Huhtamaki, through its counsel, responded to Blue Apple’s cease and
desist demand by a letter dated October 9, 2018.
(f) Huhtamaki’s response identified prior art that invalidates the ’370 Patent
and also explained why, even if the ’370 Patent was valid, Huhtamaki’s plate does not infringe it.
(g) On October 18, 2018, Blue Apple sent a letter in reply to Huhtamaki’s
response to the cease and desist demand.

(h) In its reply letter, Blue Apple stated that it disagreed with Huhtamaki’s
position regarding the validity and infringement of the ’370 Patent. Blue Apple gave Huhtamaki
a deadline of November 2, 2018, to comply with the demand or face infringement litigation.
11. Blue Apple’s accusations and demands have placed a cloud over Huhtamaki’s
business and created an immediate, concrete, and justiciable controversy between Blue Apple
and Huhtamaki.
FACTUAL BACKGROUND
12. Blue Apple claims that it filed U.S. Patent Application 29/444,090 for a design
directed to a “Segmented Food Plate,” and that, in response to this application, the United States
Patent and Trademark Office (“USPTO”) issued the ’370 Patent on January 14, 2014.
13. The ’370 Patent claims “[t]he ornamental design for a segmented Food plate, as
shown and described.”
14. The ’370 Patent describes the claimed design by referencing seven drawings, each
depicting the appearance of the plate from a different viewing angle.
15. For example, Figure 1, shown below, purports to represent “a top perspective
view of the segmented food plate”:

16. Figure 6, shown below, purports to represent “a top plan view of the segmented
food plate”:
17. Blue Apple’s demand correspondence and draft Complaint allege that
Huhtamaki’s Savaday® by Chinet® Round 5-Compartment Cafeteria Plate, Huhtamaki Item
No. 21040 also 21033, Code Name SLP52W infringes the segmented-plate design claimed by the
’370 Patent.
18. The image below is a photograph of the Huhtamaki Plate that appeared in the
February 2017 Huhtamaki Foodservice Product Catalog:

19. Blue Apple’s demand correspondence and draft Complaint allege that the
following five elements of the Huhtamaki Plate infringe the design claimed by the ’370 Patent.
(a) A similarly round shape having a raised rim around the circumference of
the plate.
(b) Five compartments able to hold five meal components including a milk
carton or bottle.
(c) A similarly square center compartment able to hold a ½ pint of milk carton
or bottle.
(d) A similarly square center compartment defined by four ridges.
(e) Four compartments defined by ridges extending out from the four corners
of the similarly square center compartment to the raised rim around the circumference of the
plate.
20. According to Blue Apple, in November 2013, the New York City Department of
Education (“NYCDOE”) attached a photograph of a Blue Apple segmented-plate, which

embodied the design claimed by the ’370 Patent, to a bid request distributed to potentially-
interested manufacturers, including Huhtamaki.
21. The NYCDOE bid request solicited bids to supply it with plates for a SchoolFood
pilot program.
22. The plates were to be “compostable” and “have 5 compartments able to hold 5
meal components including a milk carton\bottle,” among other specifications.
23. According to Blue Apple’s “information and belief,” Huhtamaki knowingly and
willfully copied its segmented-plate design after learning of it through the photograph that the
NYCDOE attached to its bid request in November 2013.
Blue Apple based, in part, on Blue Apple’s cease and desist correspondence, draft complaint,
unilaterally-imposed deadline for Huhtamaki to satisfy Blue Apple’s demand, and by
Huhtamaki’s unequivocal assertion that the claims of the ’370 Patent are invalid and not
infringed.
25. The ’370 Patent is invalid under the Patent Laws of the United States of America,
35 U.S.C. § 1 et seq., including but not limited to §§ 101, 102, 103 and 112.
26. The claims of the ’370 Patent are obvious in light of prior art that was not
considered by the examining attorney.
27. In 1996, Huhtamaki’s predecessor, The Chinet Company, designed and began
selling the segmented, five-compartment cafeteria plate (the “Chinet Plate”), which is depicted
next to Figure 6 of the ’370 Patent below:

28. The Chinet Plate contains the very same features of the ’370 Patent that Blue
Apple claims the Huhtamaki Plate infringe, specifically:
(a) A similarly round shape having a raised rim around the circumference of
the plate.
(b) Five compartments able to hold five meal components including a milk
carton or bottle.
(c) A similarly square center compartment able to hold a milk carton or bottle.
(d) A similarly square center compartment defined by four ridges.
(e) Four compartments defined by ridges extending out from the four corners
of the similarly square center compartment to the raised rim around the circumference of the
plate.
29. The plate design claimed by the ’370 Patent is obvious to one of ordinary skill in
the art in light of the combined teachings of the Chinet Plate and one or more pieces of prior art.
30. As early as the 1970’s, the Swedish Company Pukeberg Glasbruk designed and
manufactured a plate composing a circular shape, with five compartments segmented by raised
ridges, including a center rectangular compartment and four peripheral compartments defined by

the raised ridges extending outward from the center rectangular compartment, among other
similar features.
31. The image below is a true and accurate depiction of the Pukeberg Glasbruk plate:
32. The plate design claimed by the ’370 Patent is obvious to one of ordinary skill in
the art light of the combined teachings of the Pukeberg Glasbruk plate and one or more pieces of
prior art.
33. On August 2, 1950, T. W. Kyte filed U.S. Patent Application S.N. 11,555 which
matured to issued U.S. D168,161 on November 11, 1952, for the dish design shown below.

34. This dish design also comprises a circular shape; five compartments segmented
by raised ridges, including a similarly square center compartment and four peripheral
compartments defined by the raised ridges extending outward from the center compartment,
among other similar features.

35. The plate design claimed by the ’370 Patent is anticipated or rendered obvious to
one of ordinary skill in the art in light of the combined teachings of the ‘161 patent either alone
or with one or more pieces of prior art.
36. Upon information and belief, and as early as the 1980’s, a Vintage White STAUB
Fondue Pierrade Divided Dinner French Plate was designed and sold with five compartments
segmented by a raised ridges. These five compartments including a center rectangular
compartment and four peripheral compartments defined by the raised ridges extending outwardly
from the center rectangular compartment. The four peripheral compartments including one large
compartment, two medium compartments, and one small compartment located adjacent to raised
rim around the circumference of the plate. The image below is a true and accurate depiction of
the STAUB Plate:

37. Such a design claimed in the ‘370 patent is anticipated or rendered obvious to one
of ordinary skill in the art in light of the combined teaching of the STAUB Plate either alone or
in combination with one or more pieces and prior art.
38. Huhtamaki may and is likely to identify additional invalidating prior art during
the course of its continuing investigation and discovery in this case. Such counts of infringement
may include copyright infringement and/or trade dress infringement.
39. Huhtamaki is likely to add additional counts of infringement against Blue Apple
during the course of its continuing investigation and discovery in this case.
40. In addition (or in the alternative) the Huhtamaki Plate does not infringe the ’370
Patent.
41. In this dispute, the relevant “ordinary observer” is a foodservice procurement
professional acting for a foodservice organization or an institution.
42. Several differences in the overall appearance of the Huhtamaki Plate and the
design claimed by the ’370 Patent are immediately apparent to the ordinary observer:

43. Perimeter Shapes. The plate design claimed by the ’370 Patent is circular, while
the perimeter of the Huhtamaki Plate consists of two straight sides and two curved sides, which
is commonly called “racetrack” shape in the industry.
44. Compartment Shapes and Sizes. The design claimed by the ’370 Patent include
one center compartment, one large outer compartment, two medium outer compartments, and
one small outer compartment, while the outer compartments of the Huhtamaki Plate are all of
substantially equal size and of a similar shape.
45. Lengths and Angles of Ridge Segments. The four radially-extending ridges of the
design claimed by the ’370 Patent include two longer ridge segments and two shorter ridge
segments, with the two shorter ones extending radially from the center compartment at a
relatively steeper angle. By contrast, the radially-extending ridges of the Huhtamaki Plate are all
generally the same length and extend radially from the center compartment at generally the same
angle.
46. Location of the Center Compartment. The center compartment of the design
claimed by the ’370 Patent is offset from the center of plate, while the center compartment of the
Huhtamaki Plate is located in the proximate center for plate.
47. Downwardly Sloped Ridges. The upper surfaces of the four radially extending
ridges of the design claimed by the ’370 Patent intersect in a horizontal plane with the outer
ridge of the plate near the top of the outer ridge while the radially-extending ridges of the
Huhtamaki Plate are substantially downward sloping at the intersection near the middle of the
outer edge.

COUNT I
Declaratory Judgment of Invalidity of the ’370 Patent
48. Huhtamaki incorporates the preceding Paragraphs of this Complaint as if set forth
fully herein.
Blue Apple based, in part, on Blue Apple’s cease and desist correspondence, draft complaint, and
infringed.
50. The ’370 Patent is invalid under the Patent Laws of the United States of America,
35 U.S.C. § 1, et seq., including but not limited to §§ 101, 102, 103 and 112.
51. The claims of the ’370 Patent are invalid under 35 U.S.C. §§ 102-103, in part,
because features of the segmented-plate design claimed by the ’370 Patent would have been
obvious to a designer of ordinary skill in the art in light of the prior art and/or was otherwise not
novel as required by 35 U.S.C. §102.
52. Blue Apple’s insistence on pressing this dispute even after Huhtamaki
communicated these obvious invalidity and non-infringement facts to it in writing renders this
case exceptional under 35 U.S.C. §285 and therefore justifies awarding Huhtamaki its attorneys’
and costs incurred in this action.
COUNT II
Declaratory Judgment of Non-Infringement of the ’370 Patent
53. Huhtamaki incorporates the preceding Paragraphs of this Complaint as if set forth
fully herein.

Blue Apple based, in part, on Blue Apple’s cease and desist correspondence, draft complaint, and
infringed.
55. Huhtamaki does not infringe, and has not infringed the ’370 Patent pursuant to 35
U.S.C. § 271, literally or under the doctrine of equivalents, by making, using, selling or offering
to sell Blue Apple’s products and services.
56. Huhtamaki did not knowingly and willfully copy Blue Apple’s segmented-plate
design, whether after learning of it through the photograph that the NYCDOE attached to its bid
request in November 2013, or otherwise.
57. Huhtamaki is entitled to a judgment declaring that it does not infringe, and has not
infringed the ’370 Patent by making, using, selling, or offering to sell its Savaday® by Chinet®
Round 5-Compartment Cafeteria Plate or any other of its products, either literally or under the
doctrine of equivalents.
ATTORNEYS’ FEES AND COSTS
It has been necessary for Huhtamaki to retain counsel to protect its interests and assert
this action. Huhtamaki is entitled to the reasonable attorneys’ fees and costs incurred in litigating
this action pursuant to Federal Rule of Civil Procedure 54(b), 35 U.S.C. §285, and any other
applicable rule, statute or laws.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Huhtamaki, Inc. respectfully requests that a judgment be entered
against Defendant Blue Apple as follows:

A. That Judgment be entered declaring that Huhtamaki has not infringed the
’370 Patent;
B. That Judgment be entered declaring that Blue Apple is precluded from
obtaining injunctive relief, money damages, enhanced damages, costs and/or attorneys’ fees for
any alleged infringement of the ’370 Patent by Huhtamaki;
C. That Judgment be entered declaring the claims of the ’370 Patent invalid
and/or not directed to patent eligible subject matter;
D. That Judgment be entered permanently enjoining and restraining Blue
Apple, its officers, agents, employees, and attorneys from stating, implying, or suggesting that
Huhtamaki and/or its products infringe the ’370 Patent;
E. That Judgment be entered declaring that this case is exceptional in favor of
Huhtamaki under 35 U.S.C. §285, as construed in Octane Fitness, LLC v. ICON Health &
Fitness, Inc., 134 S. Ct. 1749 (2014) and Highmark Inc. v. Allcare Health Mgmt. Sys., 134 S. Ct.
1744 (2014), and accordingly Huhtamaki be awarded its reasonable attorneys’ fees and
expenses;
F. That Huhtamaki be awarded its costs in this action; and
G. That Huhtamaki be awarded such other and further relief as the Court may
deem just and proper.
DEMAND FOR A TRIAL BY JURY
Huhtamaki respectfully requests a trial by jury on all issues triable to a jury.
DATED this 27th day of November, 2018.
GIVENS PURSLEY LLP

By /s/ Alexander P. McLaughlin
Alexander P. McLaughlin – Of the Firm
Attorneys for Plaintiff Huhtamaki, Inc.

EXHIBIT A
Case 1:18-cv-00531-EJL Document 1-1 Filed 11/27/18 Page 1 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT

for the
District
__________ of Idaho
District of __________
HUHTAMAKI, INC. )
)
)
)
Plaintiff(s) )
)
v. Civil Action No. 1:18-cv-531
)
BLUE APPLE MARKETING, LLC d/b/a BLUE APPLE )
ENVIRONMENTAL SOLUTIONS, LLC )
)
)
Defendant(s) )
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) Blue Apple Marketing, LLC d/b/a Blue Apple Environmental Solutions, LLC
c/o Randol Hemmer, Registered Agent
3777 W. Twilight Drive
Boise, Idaho 83703
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are:
Alexander P. McLaughlin
Melodie A. McQuade
Givens Pursley LLP
P.O. Box 2720
Boise, ID 83701-2720
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 1:18-cv-531
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)

was received by me on (date) .
u I personally served the summons on the individual at (place)

on (date) ; or
u I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or
u I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
u I returned the summons unexecuted because ; or
u Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ 0.00 .
I declare under penalty of perjury that this information is true.
Date:
Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:

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

HUHTAMAKI, INC. BLUE APPLE MARKETING, LLC d/b/a BLUE APPLE
ENVIRONMENTAL SOLUTIONS, LLC
(b) County of Residence of First Listed Plaintiff Johnson County, Kansas County of Residence of First Listed Defendant Ada County, Idaho
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
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Alexander P. McLaughlin, Melodie A. McQuade, Givens Pursley LLP,

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(See instructions):
IF ANY JUDGE DOCKET NUMBER
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JS 44 Reverse (Rev. 06/17) Case 1:18-cv-00531-EJL Document 1-2 Filed 11/27/18 Page 2 of 2
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Huhtamaki v. Blue Apple - Complaint

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Huhtamaki v. Blue Apple - Complaint

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Case 1:18-cv-00531-EJL Document 1 Filed 11/27/18 Page 1 of 21

Alexander P. McLaughlin, ISB No. 7977

William B. Kircher, MO Bar No. 18743 (pro hac vice forthcoming)

Patrick D. Kuehl, MO Bar No. 52370 (pro hac vice forthcoming)

Attorneys for Plaintiff Huhtamaki, Inc.

UNITED STATES DISTRICT COURT

COMPLAINT FOR DECLARATORY JUDGMENT

Environmental Solutions, LLC, states and alleges as follows:

NATURE OF THE ACTION

1. This is an action for declaratory judgment of invalidity and non-infringement of

2. A copy of the ’370 Patent is attached to this Complaint as Exhibit A.

3. Plaintiff Huhtamaki, Inc. (“Huhtamaki’) is a Kansas corporation with its principal

place of business located at 9201 Packaging Drive, De Soto, Kansas 66018.

4. Huhtamaki manufactures and sells, among other things, disposable tableware,

packaging for consumer goods, and foodservice packaging.

Boise, Idaho 83703.

plates and lunch trays.

JURISDICTION AND VENUE

the Federal Declaratory Judgment Act.

COMPLAINT FOR DECLARATORY JUDGMENT

and maintains its principal place of business in Idaho.

9. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b) and 1391(c)

because the sole defendant resides in this judicial district.

desist demand to Huhtamaki’s registered agent in Topeka, Kansas.

timely and satisfactory response to Blue Apple’s demand.

desist demand by a letter dated October 9, 2018.

response to the cease and desist demand.

COMPLAINT FOR DECLARATORY JUDGMENT

shown and described.”

depicting the appearance of the plate from a different viewing angle.

view of the segmented food plate”:

COMPLAINT FOR DECLARATORY JUDGMENT

Huhtamaki’s Savaday® by Chinet® Round 5-Compartment Cafeteria Plate, Huhtamaki Item

February 2017 Huhtamaki Foodservice Product Catalog:

COMPLAINT FOR DECLARATORY JUDGMENT

(d) A similarly square center compartment defined by four ridges.

Education (“NYCDOE”) attached a photograph of a Blue Apple segmented-plate, which

COMPLAINT FOR DECLARATORY JUDGMENT

interested manufacturers, including Huhtamaki.

meal components including a milk carton\bottle,” among other specifications.

NYCDOE attached to its bid request in November 2013.

unilaterally-imposed deadline for Huhtamaki to satisfy Blue Apple’s demand, and by

considered by the examining attorney.

next to Figure 6 of the ’370 Patent below:

COMPLAINT FOR DECLARATORY JUDGMENT

Apple claims the Huhtamaki Plate infringe, specifically:

(d) A similarly square center compartment defined by four ridges.

COMPLAINT FOR DECLARATORY JUDGMENT

COMPLAINT FOR DECLARATORY JUDGMENT

among other similar features.

COMPLAINT FOR DECLARATORY JUDGMENT

or with one or more pieces of prior art.

segmented by a raised ridges. These five compartments including a center rectangular

the STAUB Plate:

COMPLAINT FOR DECLARATORY JUDGMENT

in combination with one or more pieces and prior art.

may include copyright infringement and/or trade dress infringement.

41. In this dispute, the relevant “ordinary observer” is a foodservice procurement

professional acting for a foodservice organization or an institution.

COMPLAINT FOR DECLARATORY JUDGMENT

is commonly called “racetrack” shape in the industry.

substantially equal size and of a similar shape.

Huhtamaki Plate is located in the proximate center for plate.

COMPLAINT FOR DECLARATORY JUDGMENT