Unlawful Use of Flavor

ScentSational Tech v. PepsiCo (Fed. Cir. 2019)

The legal claims in this case are interesting and could form a Mountain Dew commercial — unlawful use of flavor.  To be clear, the case is not about actual flavors, but instead enhancing the “perceived taste” of orange juice and other beverages by adding an aroma in scratch-n-sniff form to a bottle-lid closure. A “fresh aroma that replicates or evokes memory of the expected flavor” is released by the abrasive force of twisting off the bottle-cap.

ScentSational and PepsiCo had a 10-year business relationship.  As that partnership was winding down, ScentSational ramped-up talks with Coca-Cola.  However, those talks also broke down — and ScentSational blames PepsiCo.  In particular, the allegation is that PepsiCo misappropriated and attempted to patent ScentSational technology; and Coca-Cola dropped the project when it found PepsiCo’s pending patent applications.  ScentSational then sued for trade secret theft, breach of contract, and inventorship correction — arguing that damages should be based upon the lost Coca-Cola contract.  However, the district court dismissed the case in PepsiCo’s favor.

The primary issue on appeal had to do with damages and expert testimony.  The district court had barred most of ScentSational’s expert testimony for failing Daubert. On appeal, the Federal Circuit affirmed — holding that the district court “did not abuse the broad discretion it is accorded in determining whether, and to what extent, to admit particular expert testimony at trial.”  The Federal Circuit also affirmed the lower court’s summary judgment finding that ScentSational had failed to produce inventorship evidence.

A controversial aspect of the decision was the notion that ScentSational’s failure to prove particular damages should result in dismissal of the entire case (since damages are not an element of the trade secret or breach claims).  The appellate panel held that ScentSational’s claim to nominal damages had been waived and “In any event, we have held that we will ordinarily not remand a case merely to determine whether nominal damages would have been appropriate.”

Following the May 2019 decision, ScentSational petitioned for rehearing arguing that the court misunderstood a number of facts in dispute and also “that while a plaintiff must prove the existence of damages with certainty in order to recover, plaintiff need not prove the amount of loss with certainty.”  In a recent order, however, the Federal Circuit has denied rehearing — effectively ending ScentSational’s case.

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21 thoughts on “Unlawful Use of Flavor

  1. 3

    link to usatoday.com

    This is dead on to what Lemley does. Software does have structure despite Lemley’s claims to the contrary. Mark Lemley regularly makes up “facts” in his journal articles and does not even both to cite to authorities (like Nobel Prize winners) that state the exact opposite.

  2. 2

    MM>>>Dennis, you have a couple commenters here suggesting that legal reasoning (which certainly includes correlating one fact with another) is a “Useful Art” and should be eligible for patenting.
    Care to share your opinion on that subject?
    Of course you don’t. The people who pay for this site wouldn’t like that.

    So MM is saying that a machine that could perform “legal reasoning” should not be eligible for patentability. Why is that? And note that it is not the legal reasoning that is being patented but a machine that can perform legal reasoning. The fact that MM conflated the two means he is not interested in real debate.

    Also, the people that pay for this would not be happy? Another of MM’s allusions suggesting that somehow he is part of the operation of patentlyo or that there is content control.

    1. 2.1

      Another of MM’s allusions suggesting that somehow he is part of the operation of patentlyo or that there is content control.

      While there is NO doubt that over the years suggestions keep on coming up that Malcolm has some relation to the operations of patentlyo**, there is also NO doubt that there IS content control on this blog.

      This is more than evident in the lack of objective editorial rule application (multiple examples exist, such as different people have different “count filter” activations, and verbatim “count and paste” of comments reflect different “George Carlin” filter activations).

      The bottom line is that there IS a certain desired narrative and those that espouse a different narrative OFTEN have more than merely commentators to battle.

      ** I have explicit personal experience with Malcolm being able to post certain things that could only be explained with Malcolm having an “internal” connection to the workings at the blog.

      Separately, one of the indicators is the fact that even given that Malcolm has BY FAR the most posts expunged on this blog for posting inappropriately (more than ALL OTHERS combined), he routinely “gets away with” those very same types of posts — and has done so for OVER 14 years.

      For all of the semi-occasional “let’s have a nice blog” efforts, the SINGLE largest blight — and not incoincidentally, the single largest detractor of inte11ectual and cogent legal positions being made ON this blog — Malcolm is permitted to fester. It is the likes of what Malcolm posts that then engender the mindlessness of the likes of others that post in inane non-patent law based views.

      I “get” that if actual patent law based views (views based in the actual words of Congress) were enforced, as well as some minimal level of inte11etual honesty were enforced, that the blog would probably get pretty du 11 with the fact that the only posts showing would be those espousing a strong patent system.

      This blog would then resemble a certain other patent blog (one that Malcolm 0bsesses over, and one that has been recognized as ACTUALLY being “America’s leading patent law source” for the last three years.

      Perhaps the byline here should be updated to be: “America’s leading patent law squabble and propaganda source.”

    2. 2.2

      Greg on the other thread has his latest deflections out. 1) That I am not skilled in the art because I am an anonymous poster. 2) His twisted explanation of the difference between anyone and a person having …

      Just more ridiculous nonsense from Greg. Again–those of us with the proper education have no problem interpreting the claims of EE/information processing patents. We know which solutions are covered and the boundaries of the claims. All that you say Greg is just fantastical nonsense that you and people like the Lemley have fabricated.


          It is incredible that people like Greg keep this up. There appears to be no level of argument that is sufficient from stopping them in making up these fantastical stories about how claims are construed by those skilled in the art.

          (I have an MS degree from one top 5 engineering school and was all but dissertation in another top 5 engineering school.) I also have 15+ years of patent law experience including litigation and about everything you can think of under my belt and a degree and awards from a top law school.

          Greg and Lemley’s nonsense about how claims of EE/information processing are interpreted is sheer crxp. I have spent hours talking to Ph.D.’s from top schools thinking about how big corporation may try to escape from paying us license fees. I know exactly how people the claims are interpreted and I could build all these solutions as well.


            The funny thing is that Greg wants to take the “high road” and pretend that just because he uses his real name that somehow his position (based in total ig n0r ance of the particular Art field) is somehow not only “on par” with your view, but that is somehow inantely better.

            The thing of course, is that Greg — BY using his real name (and ”
            whipping out” his pedigree, SHOWS that he has NO basis for making the claims as he does for what ANY legal fiction for a/any person IN THE ART would recognize for the legal ramification of what an applicant would need to meet to satisfy 35 USC 112.

            He wants the high road WHILE showing that he does not deserve that very position.

            And THIS is entirely separate from whatever qualifications you may (or even may not) have.


              This is exactly right anon. Greg has no education in EE/CS. Lemley does not either and Lemley is not qualified to take the patent bar despite his occasional claims that he is a patent attorney.

              The fact is that we are dealing with people with a very poor character.

    3. 2.3

      Night: Who are the people that pay for this site, and to what degree do they control what is written on it about eligibility?

      Repeatedly, I am reminded here that “everybody has an agenda” so I take it that the “people that pay for this site” also have one. Of course. It’s worth keeping in mind.

      1. 2.3.1

        >>Night: Who are the people that pay for this site, and to what degree do they control what is written on it about eligibility?

        I don’t know. I don’t think the people that pay for this site have an agenda other than supporting Dennis. I think Dennis has biases that show through, but they are fairly apparent and not hidden.

        I was merely quoting MM’s 15 years of allusions that somehow MM is part of the management of the site and that there is upper level control on the content.

      2. 2.3.2

        And Max, be real. Read some about the Internet. Every PR firm now has as part of their PR strategy a presence on social media/specialized blogs. To think that some of the people on here aren’t being paid to blog is ridiculous.

        Just spend some time and do your own research about the numbers of people that are paid to post. One interesting thing to do is look at job posting PR firms put up. They always include a component of social media expertise.

      3. 2.3.3

        Continuing with that thought, what we see on this blog are people that push points despite the facts and law being against them. They apparently are disconnected from any real discussion and are just putting out their clients’ point of view on the Internet.

        We even posted on here admissions from Lemley that he and his wife had made many millions from burning the patent system down.


          Night, thanks for answering. I wonder, do you include me in the group of people that “push” points despite “the facts and the law being against them”? I do hope so, for that’s what I think I do, some of the time.

          Long ago I used to post to the Watchdog blog but walked away in disgust at the treatment I received from the blog operator, who took a personal dislike to my views. I continue to post here because I have the feeling that this site operates no discrimination against my postings (despite the sometimes bizarre actions of the automated filter).


            You can surely tell us your biases better than I can.

            My perception of you is that you like to push certain issues pretty much no matter what. Sometimes I enjoy interacting with you. And sometimes you bring up some good points. Overall, I am bit confused why you push your points the way you do, but I enjoy hearing the best arguments based on EPO law.


              Why? I use the discussion here as practice how to explain as effectively as I can to US attorney clients of mine why things are as they are in Europe. Unless I am effective, in my day job I get instructions from them that waste their time and mine, and a whole lot of their clients’ money. Feedback here alerts me when my explanations are simply not understood.

              Is it the same in reverse? Do you get instructions from Europe how to argue at the USPTO, and how to amend the claim, which are not helpful and have to be re-written? For the client to pay the costs of drafting in the offices of two law firms, one in the USA and one in Europe, that’s unnecessarily costly, is it not?


                I don’t about all that Max. I don’t get instructions from FAs. I give instructions to FAs and do some prosecution around the world.

                I agree it is very interesting to try and figure out how the different systems work and how to discuss the different strategies.

                1. OK, Night. In that case, you might like to read, new on the Watchdog blog, the interview with three EPO Examiners about patenting what they like to call “Computer-implemented inventions”.

                2. I saw that Max. That is a good article.

                  I’ve spent many hours figuring out how to write applications for China and the EPO.

                3. Interesting to note that the “per se” and “as such” was not so emphasized as to reflect that — at least on eligibility — it is now flip-flopped as to “ease of patenting” for certain forms of innovation between the different Sovereigns.

  3. 1

    From the link, PepsiCo appears not only to have attempted to patent, but did actually obtain a patent. Here’s claim 1:

    1. A container having an openable closure and an aroma delivery system positioned between the closure and container wherein the aroma delivery system comprises:

    an aroma compound entrapped within a polymeric matrix; and

    a non-replaceable secondary covering film impermeable to the aroma compound, wherein the secondary covering film is in contact with the polymeric matrix; and wherein said aroma compound is released upon initial abrasion of the secondary covering film.

    Interesting claim. I don’t claim to be an expert in this area but it would appear that the preamble here includes pretty much all of the life and meaning of the claim (but, even in that case, perhaps not enough to withstand a robust invalidity challenge). What’s not clear from reading this claim is how the matrix-“entrapped” aroma compound is “released” upon abrasion of only the secondary covering film. Some essential elements would seem to be missing.

    Also, I would have expected that the prior art would have required the recitation of something more than just “a container” (e.g., “a container comprising a flavored liquid”), particularly given the context for the “invention” described in Dennis’ post.

    1. 1.1

      I have a different question: how to place the caps on to the bottles? If one does it by rotating the cap relative to the bottle, why does that not release the aroma just as effectively as relative rotation between bottle and cap in the other direction, ie prematurely, even while the bottles are advancing along the bottle-filling line.

      I assumed that the caps might be applied otherwise, perhaps by some sort of squeeze/crimp or flow-moulding process. But that process, I imagine, would also rupture the polymer film that encapsulates the aroma.

      What am I not seeing here?

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