By Eric Schweibenz and Alex Englehart
On November 13, 2017, Windham Packaging, LLC of Windham, New Hampshire (“Windham”) filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.

The complaint alleges that the following entities (collectively, the “Proposed Respondents”) unlawfully import into the U.S., sell for importation, and/or sell within the U.S. after importation certain microperforated packaging containing fresh produce that infringes one or more claims of U.S. Patent No. 7,083,837 (the ’837 patent):

  • Alpine Fresh, Inc. of Miami, Florida
  • Apio, Inc. of Guadalupe, California
  • B&G Foods North America, Inc. of Parsippany, New Jersey
  • Glory Foods, Inc. of Columbus, Ohio
  • Mann Packing Co., Inc. of Salinas, California
  • Taylor Farms California, Inc. of Salinas, California

According to the complaint, the ’837 patent generally relates to microperforated packaging that establishes optimum atmospheric conditions for fresh produce contained therein. In particular, the patented technology involves the inclusion of microperforations in a non-porous, polymeric packaging material, with the microperforations being of a size, shape, number, and location to control and maintain desired oxygen and carbon dioxide concentrations for fresh produce contained within the packaging.

The complaint states that the Proposed Respondents import and sell products that infringe the ’837 patent. The complaint specifically refers to various vegetables packaged in microperforated packaging, including brussels sprouts, asparagus, broccoli, green beans, carrots, cauliflower, snap peas, snow peas, and kale greens, as infringing products.

Regarding domestic industry, Windham states that its licensees manufacture microperforated packaging for fresh produce that practices claims of the ’837 patent. By way of example, Windham states that its licensee Temkin International, Inc.’s eight-ounce package of English Peas is a representative domestic industry product. Windham relies on both its own licensing activities in the U.S. and its licensees’ domestic investments related to products that practice the ’837 patent in support of Windham’s domestic industry contentions.

As to related litigation, Windham states that it previously asserted the ’837 patent against Sunshine Plastics Corporation in the U.S. District Court for the Central District of California, and that that prior case was resolved through settlement.

With respect to potential remedy, Windham requests that the Commission issue a permanent limited exclusion order and permanent cease and desist orders directed at the Proposed Respondents.