“Cellulose is a leading developer and manufacturer of various insulation products, including the InfinityCore® brand of thermoplastic packaging products. Cellulose sued Defendant-Appellee SC Marketing Group, Inc. (a/k/a Thermal Shipping Solutions) (‘Thermal Shipping’) claiming infringement of its patent for packaging insulation that keeps the package contents—for example, meal kits with food items—cool and fresh with fewer or even no accompanying refrigerant packs or dry ice. The patent is U.S. Patent No. 11,078,007 (the ’007 patent). The ‘007 patent is directed to a thermoplastic packaging insulation product and, more specifically (as broadly recited in the patent’s claims), a foldable laminated packaging insulation having a thermoplastic fibrous batt with thermoplastic film adhered to opposite sides of the batt. Thermal Shipping’s product that Cellulose claims infringes the ‘007 patent is called ‘Renewliner.’”
“Cellulose developed the Renewliner product in the course of a business relationship with Thermal Shipping, a relationship that Thermal Shipping ended soon after issuing the very first purchase order to Cellulose to supply Renewliner to third party DinnerThyme. Subsequently, in April 2016, Thermal Shipping issued a purchase order for Renewliner to another vendor, Turner Fiberfill who had not previously made Renewliner.”
“The district court granted Thermal Shipping’s motion for summary judgment of invalidity, concluding that Thermal Shipping’s Renewliner is anticipatory prior art because it practices the claims of the ‘007 patent and, by virtue of the April 2016 purchase order to Turner Fiberfill, was ‘on sale’ before Cellulose filed its patent application in June 2016. See 35 U.S.C. § 102(a).”
“Cellulose, however, presented evidence supporting application of two of the Section 102 exceptions to invalidity. First, there is evidence that Cellulose provided the Renewliner to Thermal Shipping before the April 2016 purchase order to Turner Fiberfill and that Thermal Shipping, in turn, provided to Turner the specifications to make the same product. This at least supports a finding that the Renewliner of the April 2016 purchase order was obtained indirectly from Cellulose. This evidence also supports the alternative possibility that the Renewliner of the April 2016 purchase order was obtained directly from a ‘joint inventor,’ given Thermal Shipping’s claim that its owner, Salvatore (‘Sal’) Cardinale, was a joint inventor of the ‘007 patent. See 35 U.S.C. § 102(b)(1)(A). Second, there is evidence that Cellulose ‘publicly disclosed’ its invention before the April 2016 purchase order when it provided specifications and samples for Thermal Shipping customers. Against this conflicting evidence, did the district court err in granting summary judgment to Thermal Shipping on the invalidity issue?”
