Pleading around Dastar?

Kowalski v. Anova Food, LLC, 2014 WL 8105172, No. 11–00795 (D. Hawai’i Dec. 31, 2014)
Kowalski owns a patent entitled “Process For Manufacturing Tasteless Super–Purified Smoke For Treating Seafood To Be Frozen And Thawed.” He sued Anova for patent infringement and false advertising under the Lanham Act.  In 1999, he sent a notice of infringement letter, and Anova’s predecessor in interest replied that it would liquidate its inventory of tasteless smoke tuna.  In 2000, he sent another letter.  A former president of Anova’s predecessor declared that he met Kowalski in 2005 and asked him if he was going to sue, and that Kowalski said no, but Kowalski disputed this.  Because of the disputed facts, summary judgment on Anova’s equitable estoppel defense was inappropriate.  Also, though the laches defense was not barred by Petrella according to Federal Circuit precedent, the presumption of laches given delay over 6 years was rebutted because Kowalski’s engagement in other litigation made its delay reasonable, and Anova knew of (and even participated in) other litigation around the validity of the patent.
As for the Lanham Act claim, Kowalski alleged that Anova misrepresented the process Anova used to treat its fish. Anova argued that this wasn’t a claim about the nature, characteristics, or qualities of its products, but merely an argument that Kowalski was the rightful owner of the process used, which couldn’t be a Lanham Act claim under Dastar/Baden. The court disagreed and found that Kowalski alleged that Anova hadn’t used the “Clearsmoke” process as advertised and thus misrepresented the characteristics and qualities of its fish.  Hard to tell whether this is really just an evasion of Dastar; one question that seems likely to be relevant is whether the difference between Clearsmoke and whatever Anova allegedly used instead would be material to consumers.
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