Kowalski v. Anova Food, LLC, 2014 WL 8105172, No. 11–00795 (D.
Hawai’i Dec. 31, 2014)
Kowalski owns a patent entitled “Process For Manufacturing
Tasteless Super–Purified Smoke For Treating Seafood To Be Frozen And Thawed.”
He sued Anova for patent infringement and false advertising under the Lanham
Act. In 1999, he sent a notice of
infringement letter, and Anova’s predecessor in interest replied that it would
liquidate its inventory of tasteless smoke tuna. In 2000, he sent another letter. A former president of Anova’s predecessor
declared that he met Kowalski in 2005 and asked him if he was going to sue, and
that Kowalski said no, but Kowalski disputed this. Because of the disputed facts, summary
judgment on Anova’s equitable estoppel defense was inappropriate. Also, though the laches defense was not
barred by Petrella according to
Federal Circuit precedent, the presumption of laches given delay over 6 years
was rebutted because Kowalski’s engagement in other litigation made its delay
reasonable, and Anova knew of (and even participated in) other litigation
around the validity of the patent.
As for the Lanham Act claim, Kowalski alleged that Anova misrepresented
the process Anova used to treat its fish. Anova argued that this wasn’t a claim
about the nature, characteristics, or qualities of its products, but merely an
argument that Kowalski was the rightful owner of the process used, which
couldn’t be a Lanham Act claim under Dastar/Baden. The court disagreed and found
that Kowalski alleged that Anova hadn’t used the “Clearsmoke” process as
advertised and thus misrepresented the characteristics and qualities of its
fish. Hard to tell whether this is really just an evasion of Dastar; one question that seems likely to be relevant is whether the difference between Clearsmoke and whatever Anova allegedly used instead would be material to consumers.
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