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ANGELO MONGIELLO'S CHILDREN, LLC v. PIZZA HUT

August 31, 1999

ANGELO MONGIELLO'S CHILDREN, LLC, PLAINTIFF,
v.
PIZZA HUT, INC., DEFENDANT.



The opinion of the court was delivered by: Nickerson, District Judge.

MEMORANDUM AND ORDER

Plaintiff Angelo Mongiello's Children, LLC, brought this action alleging patent infringement against defendant Pizza Hut, Inc. The court has jurisdiction under 28 U.S.C. § 1338, giving district courts jurisdiction over claims for patent infringement arising under the patent laws of the United States, Title 35 of the United States Code.

The complaint alleges that defendant's method for making stuffed-crust pizzas, in use between March of 1994 and at least July of 1996, infringed plaintiff's method for making pizza claimed in United States Patent No. 4,661,361 dated April 28, 1987 (the '361 patent).

Defendant now moves for summary judgment on two grounds, non-infringement and invalidity of the '361 patent. Plaintiff cross-moves for partial summary judgment of infringement, and also moves to strike certain documents submitted by defendant in support of its motion.

The record shows, in substance, the following. Unless otherwise stated, the facts are undisputed. On April 28, 1987 the United States Patent Office issued to plaintiff the '361 patent entitled "Method for Making a Pizza" (the claimed method) containing fifteen "method claims" for making pocketed crust pizza.

In essence, plaintiff's method is to create multiple, individually sealed pockets made of dough that are filled with cheese (or other ingredients) and enclosed within the outer rim of a pizza crust or placed on a portion of the pizza crust. Tomato sauce and cheese covers the rest of the pie.

Method claims 1-3 and 11-13 are at issue in defendant's motion; plaintiff's motion addresses claims 1-3 and 10. The claims describe two basic methods: one uses dough pulled over from the edge of the crust to cover the fillings and form the pockets; the other places a separate piece of dough, not from the edge, over the fillings to form a pocket. The claims read as follows:

1. A method of making a pizza comprising the steps of:

(a) forming a generally flat dough base;

  (b) placing a plurality of separated individual food
  portions on the dough base such that, when the dough
  base is cut into substantially equally sized
  portions, each individual food portion is located
  upon a portion of each pie;
  (c) covering each food portion with an unbaked dough
  section of sufficient dimensions to cover said food
  portion thereby forming a separate closed pocket
  about each food portion;
  (d) covering the portions of the dough base which are
  not covered by said closed pockets with a layer of
  tomato sauce and cheese to form an unbaked pizza
  product; and

(e) baking the unbaked product to obtain a pizza.

2. A method according to claim 1 wherein the placing step includes the step of uniformly locating the individual food portions upon the dough base.

3. A method according to claim 1 wherein

  (a) the placing step further includes the step of
  locating the individual food portions adjacent an
  outside perimeter of the dough base;
  (b) the covering step includes the step of folding an
  outside peripheral strip of the dough base over the
  food portions; and
  (c) the step of forming a plurality of closed pockets
  includes the steps of
    (i) pinching an edge of the peripheral strip to the
  dough base, and
    (ii) pinching to the dough base areas of the
  peripheral strip between the food portions.

10. A method according to claim 1 wherein the layer of tomato sauce and cheese further comprises a topping.

11. A method of making a pizza comprising the steps of:

(a) forming a generally flat dough base;

  (b) forming a plurality of closed pockets each pocket
  enclosing a portion of food;
  (c) placing the closed pockets on portions of the
  dough base;
  (d) covering portions of the dough base which are not
  covered by said closed pockets with a layer of tomato
  sauce and cheese to form an unbaked pizza product;
  and

(e) baking the unbaked product to obtain a pizza.

12. A method according to claim 11 wherein the placing step includes the step of uniformly distributing the pockets about at least a portion of the base.

13. A method according to claim 11 wherein the layer of tomato sauce and cheese further comprises a topping.

In early 1988 Anthony Mongiello sent defendant a copy of the '361 patent, offering a license under it. Defendant responded by letter dated May 17, 1988 that it was "not a new concept for Pizza Hut" and rejected the offer.

In March of 1995 defendant launched a cheese "Stuffed Crust Pizza." The manager's guide dated February 1995 describes defendant's method as follows:

• Place thumbs on edge of dough.

• Press dough ridge up the sides of pan.

— Dough must extend just above rim of pan (1/4")

  • Evenly space five pieces of thawed mozzarella
    string cheese approximately a thumb's width apart
    along the outside edge of the dough

— Place close to bottom of pan where edge meets.

  • Use thumb and index fingers to stretch and fold
    edge of the dough over string cheese and press
    firmly to seal.
  — Dough overlap should be visible on both sides of
  thumb.
  — Keep stuffed edge at score line etched in pan to
  keep dough in round shape.
  • Use thumbs to press and seal overlapped dough to
    bottom edge.

• Use thumbs to push stuffed edge out to edge of pan.

  • [after applying sauce, toppings, and baking] [a]ll
    Stuffed Crust Pizzas are cut into 8 slices. If
    cheese is leaking through small hole in crust,
    begin cutting pizza at that spot.

An objective of the method was to create "cheese pull," which means that the cheese within the crust joins together during baking so that the consumer receives "cheese in every bite."

Defendant launched a pepperoni and cheese Stuffed Crust Pizza in September of 1995, which contained a continuous layer of pepperoni slices beneath the five pieces of cheese within the outer edge of the pizza. Plaintiff concedes that the pepperoni and cheese version does not infringe the '361 patent.

At some time after July 18, 1996, defendant began using a new formulation of string cheese that was softer and longer, and that was to be placed end to end around the edge of the pizza to make sure that customers would receive "cheese in every bite." Plaintiff concedes that defendant's current method using the longer pieces of cheese touching end-to-end in a continuous ring around the circumference of a pizza ...


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