On Thursday, Judge Colm F. Connolly of the Delaware District Court ruled that Hershey Creamery and Hamilton Beach Brands must stop selling and using machines used for milkshake mixing because the machines allegedly infringe upon multiple patents owned by F’Real Foods. The case was appealed shortly thereafter by the defendants and will be heard in the United States Court of Appeals.
The opinion and its accompanying order placed an injunction against the MIC2000 blender. This self-cleaning blender is used by Hershey’s in its Shake Shop Express Program to allow customers to serve shakes. The judge ruled that F’Real Foods demonstrated it lost sales from the patent infringement.
“It follows from a finding of lost profits that as long as Defendants are permitted to continue infringing Plaintiffs’ patents, Plaintiffs will continue to lose profits, lose business opportunities, and be deprived of market share. In this case, Defendants have made it clear that unless they are enjoined they will continue to infringe Plaintiffs’ patents until they have finished selling their stock of ice cream cups used in the Shake Shop Express program,” the opinion states to explain its injunction.
Regarding other Hamilton Beach blenders involved in the case sold to Dairy Queen – including the IMI2000, BIC2000, and BIC3000-DQ – the opinion states the plaintiff did not show they have lost sales or would suffer irreparable harm from continued use of the items and the court refused to grant an injunction.
“Even if Plaintiffs could show that they have been harmed by losing the opportunity to sell their blenders to Dairy Queen in the place of the BIC3000-DQ, they have failed to show that there is a causal nexus between the patented features and the demand for the BIC3000-DQ,” the opinion states. The judge further argues that the other blenders have different listed purposes and the plaintiffs did not establish sufficient connections or evidence.
Judge Connolly also ordered that the plaintiffs should re-submit damages calculations so that the court can award damages to F’Real Foods.
The patents involved in the lawsuit include U.S. Patent No. 5,803,377, U.S. Patent No. 7,144,150, U.S. Patent No. 7,520,658, and U.S. Patent No. 7,520,662. The plaintiffs, including Rich Products Corporation and F’Real Foods LLC, are represented by Morris Nichols, Arsht & Tunnell. Hershey Creamery Company is represented by Potter Anderson & Corroon. Hamilton Beach Brands Inc. is represented by Faegre Drinker Biddle & Reath.