CAFC Affirms Non-Infringement Finding in Dispute Over Silicone Container Patent

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Tuesday affirmed a district court’s summary judgment of non-infringement in favor of SC Johnson & Son Incorporated in a case brought by Zip Top, Inc. The decision centered on the interpretation of a key term in a patent claim for reusable silicone containers.

Zip Top appealed a decision from the United States District Court for the Northern District of Illinois that granted summary judgment of non-infringement to SC Johnson. Zip Top had asserted that SC Johnson’s Ziploc Endurables products infringed United States Patent No. 11,383,890, which discloses a process for making a container from molded silicone. The accused products are reusable silicone containers with a zipper mechanism at the top, which is bonded at the ends to prevent liquid leakage, and feature “Cool Grab Tabs.”

SC Johnson’s primary noninfringement argument was that its products do not include a “spout.” Before the district court, both Zip Top and SC Johnson agreed that the spout claim element should be construed as a “distinct feature that directs liquid from and facilitates the pouring of fluid from a container.” The dispute on appeal arose from an additional limitation the district court imposed, finding that “the zipper members are not the spout or part of it; rather, the spout is a separate feature.”

Zip Top argued that the district court erred by imposing a negative limitation not present in the claim language. Zip Top contended that Figures 5B and 5C of the patent depict “cross over” embodiments where the male and female zippers “cross over at the spout location” and form a spout. Zip Top also asserted that the male and female zipper members of the Ziploc Endurables containers “cross over” each other at the tips, and that a user may hold the container by the “Cool Grab Tabs” to pour fluid over a “Cool Grab Tab.”

The CAFC disagreed with Zip Top’s proposed construction, and the court found “‘the clear implication of the claim language’ is that the zipper members and the spout are “distinct component[s]’ of the patented invention because Claims 1 and 9 of the patent list them separately.” The court explained that, in both claims, the spout is an element of the container’s mouth, which is part of the container, not the separate zipper portion. The specification also consistently referred to the spout and zipper members as distinct features. For instance, in one preferred embodiment, the specification discloses that “the male and female zipper members 67 and 68 do not interfere with the spout 63.”

Additionally, the court found Zip Top’s proposed construction to be illogical. The CAFC pointed to claim language describing the zipper members as being “proximate” to or terminating “at” the spout. Claim 1 describes a zipper portion with “at least one female end section proximate the at least one flexible spout.” Claim 9 similarly describes a zipper portion with a male or female zipper member that “taper[s] until it terminates at the at least one flexible spout.” The court reasoned that the zipper members cannot be part of the spout if they terminate at it.

Moreover, the court noted that Zip Top improperly relied on preferred embodiments in the specification rather than the claim language. The CAFC reiterated that “it is the claims, not the preferred embodiments, that define the metes and bounds of the patentee’s invention.” The court further explained that “the mere fact that there is an alternative embodiment disclosed in [a] patent that is not encompassed by [the] district court’s claim construction does not outweigh the language of the claim, especially when the court’s construction is supported by the intrinsic evidence.”

Following its claim construction, the court found no genuine dispute of material fact that the accused products lack the claimed spout. The opinion noted that “literal infringement exists when every limitation recited in the claim is found in the accused device.” Zip Top argued that the V-shaped corners of its products facilitate pouring and satisfy the spout limitation, but the court found this evidence unpersuasive. Although the ends of the accused products’ zipper members might appear to come to a “V-shaped or liplike” end, Zip Top failed to explain how these end points are “distinct.”

The CAFC noted that while images showed water could be poured from the corners, there was no evidence that this feature was “distinguishable to the eye or mind as being discrete” or “readily and unmistakably apprehended.” The court observed that “one can pour fluid out of any open container, no matter how it is shaped or designed, regardless of whether it has a spout.” Nothing in the images suggested that pouring liquid from the accused products is made easier by the products’ corners. Even viewing the evidence in the light most favorable to Zip Top, the accused products do not satisfy the spout limitation in the ‘890 patent.

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