Kim v. The EarthGrain Co. k/n/a Sara Lee Bakery Group, Inc., No. 01 C 3895, Slip Op. (N.D. Ill. Feb. 4, 2011) (Cox, Mag. J). Judge Cox construed the claims of plaintiff's patent to compositions of a potassium bromide replacement for bread, and granted defendant Sara Lee summary judgment of noninfringement. Of particular note, the Court construed the following terms, all in Sara Lee's favor: "A potassium bromated replacer composition, consisting of" as: a mixture of ingredients that acts to perform essentially the same function when used in the production of bread as would potassium bromated, namely, acting as a slow acting oxidant in the bread making process to strengthen the dough, increase loaf volume, and contribute to fine crumb grain. The mixture of ingredients is limited to the claimed ingredients (ascorbic acid, food acid, and flour) in the claimed amounts based on the weights of the ingredients. The mixture cannot contain additional chemical ingredients beyond those listed. "Said food acid is present in an effective amount" as: "Food acid" must be present in an amount that slows down the rate of oxidation of ascorbic acid to dehyroascorbic acid during a manufacturing process of bread. "Said food acid selected from the group consisting of acetic acid . . . vinegar . . ." as: the food acid can either be vinegar or acetic acid. "Vinegar" is a sour liquid used as a condiment or preservative that is obtained by acetic fermentation of dilute alcoholic liquids or of dilute distilled alcohol. "Acetic acid" is an organic acid represented by the chemical notation C2H2O2. "Flour" as a "finely ground meal of wheat." Having construed the claims, the Court held that Sara Lee's accused products did not infringe the asserted patent: The "consisting of" transitional phrase required that the claimed replacement could only have the claimed ingredients. But those ingredients could be mixed with other ingredients of the bread, as long as they were not part of the potassium bromide replacement. Sara Lee's products did not infringe because there was no evidence as to the amount of ascorbic acid in the accused bread. While a set amount was added in tablet form, the tablet would interact with water in the bread dough oxidizing the ascorbic acid and turning some of it into a non-infringing compound. Five of the six accused products also did not infringe because they had more vinegar in them than the claimed range.
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