Appeal from the United States District Court for the Northern District of Illinois in Case No. 01-CV-3895, Magistrate Judge Susan E. Cox.
The opinion of the court was delivered by: Lourie, Circuit Judge.
NOTE: This disposition is nonprecedential.
Before LOURIE, BRYSON, and MOORE, Circuit Judges.
Yoon Ja Kim appeals from the district court's judgment of noninfringement in favor of The Earthgrains Company, now known as Sara Lee Bakery Group, Inc. ("Sara Lee"). In this appeal, Kim challenges, among other issues, the district court's claim construction, its conclusion that Kim failed to raise a genuine issue of material fact on the issue of infringement, and its determination of the applicable damages period. Because the district court did not err in its decision, we affirm.
This patent case relates to oxidizing agents used in bread dough. Traditionally, bread makers used potassium bromate as an oxidizing agent to strengthen bread dough and increase the volume of the finished bread product. The use of potassium bromate, however, was associated with certain health risks, and the Food and Drug Administration encouraged the baking industry to seek suitable alternatives.
Kim, a food chemist, believed that a combination of ascorbic acid and a "food acid" would serve as a suitable alternative to potassium bromate in the bread making process, and applied for a patent on that composition, which the U.S. Patent & Trademark Office ("PTO") issued in 1996. Three years later, after completing reissue proceedings, the PTO issued the patent in suit, U.S. Patent Re. 36,355 ("the '355 patent").
The '355 patent relates to a composition, referred to in the patent as a "potassium bromate replacer," for use as a substitute for potassium bromate. Specifically, the '355 patent upon issuance claimed a "potassium bromate replacer composition consisting essentially of" a number of ingredients by weight. Claim 5 of the '355 patent, reproduced below, is exemplary:
5. A potassium bromate replacer composition consisting essentially of, by weight:
(a) about 0.001 to 0.03 parts ascorbic acid as an oxidant per 100 parts flour,
(b) about 0.015 to 0.2 parts food acid per 100 parts flour, said food acid selected from the group consisting of acetic acid, citric acid, fumaric acid, lactic acid, malic acid, oxalic acid, phosphoric acid, succinic acid, tartaric acid, fruit juice, fruit juice concentrate, vinegar, wine, and mixtures thereof, and
'355 patent, col.8 ll.47--57 (emphasis added). Each claim of the '355 patent contained the "consisting essentially ...