Digest of INEOS USA LLC, v. BERRY PLASTICS CORPORATION, No. 2014-1540 (Fed. Cir. Apr. 16, 2015) (precedential). On appeal from the S. D. Tex. Before Dyk, Moore, and O’Malley.

Procedural Posture: Patentee appealed the district court’s grant of summary judgment that the patent-in-suit, which related to a polyethylene-based composition that can be used to shape bottle caps, is invalid as anticipated under 35 U.S.C. § 102. The CAFC affirmed.

  • Anticipation: The patent-in-suit’s claims were directed to a polyethylene composition with 0.05-0.5% lubricant by weight. A prior art reference disclosed a polyethylene composition with at least 0.1% lubricant, or more preferably at least 0.2 or 0.4% lubricant by weight. While the district court erred when it found that this disclosed compositions with particular weight percentages of lubricant falling within the scope of the claims as opposed to a range, the prior art reference’s disclosure was still sufficient to be anticipatory. There was no evidence suggesting that there was any difference between the range of the prior art and the range of the claims. And, Plaintiff failed to raise a genuine issue of material fact regarding whether the range claimed by the patent-in-suit was critical to the operability of the claimed invention.