Promotion In Motion Inc v. New Cibo Vita LLC

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Promotion In Motion, Inc. (Delaware)
  • Defendant: New Cibo Vita LLC (Delaware)
  • Plaintiff's Counsel: Shaw Keller LLP
• Case Identification: 1:26-cv-00368, D. Del., 04/02/2026
• Venue Allegations: Venue is alleged to be proper in the District of Delaware because Defendant is incorporated in Delaware and has allegedly committed acts of infringement in the district.
• Core Dispute: Plaintiff alleges that Defendant's "Yoggies" brand yogurt-covered fruit snacks infringe two patents related to a multi-layer food product designed to keep probiotic cultures shelf-stable.
• Technical Context: The technology addresses the challenge of incorporating sensitive biological ingredients like probiotics into high-moisture, shelf-stable food products, a significant area of innovation in the functional foods market.
• Key Procedural History: The complaint alleges that Defendant gained knowledge of the asserted patents through International Search Reports received in April and May 2024. It further alleges that Defendant cited the patent publication that matured into the '267 patent in an Information Disclosure Statement filed with the USPTO in September 2025, a fact which may be central to the allegations of willful infringement.

Case Timeline

Date	Event
2007-10-24	Earliest Priority Date for '267 and '640 Patents
2017-09-05	U.S. Patent No. 9,750,267 Issues
2022-05-03	U.S. Patent No. 11,317,640 Issues
2023-XX-XX	Defendant allegedly introduces "Yoggies" product
2024-04-12	Defendant allegedly receives International Search Report listing the asserted patents
2024-05-12	Defendant allegedly receives second International Search Report with substantive analysis
2025-09-XX	Defendant allegedly cites '267 patent publication in an Information Disclosure Statement
2026-04-02	Complaint Filed

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 9,750,267 - "Fruit Snack with Probiotics and Method of Manufacturing a Fruit Snack with Probiotics" (Issued Sep. 5, 2017)

The Invention Explained

• Problem Addressed: The patent addresses the technical difficulty of creating a food product that contains both a high-moisture component (like a fruit center) and viable, heat-sensitive probiotic cultures while remaining stable at room temperature Compl. ¶21 '267 Patent, col. 2:6-18 Conventional products with probiotics, such as yogurt, typically require refrigeration and have a limited shelf life due to the moisture content degrading the live cultures Compl. ¶21
• The Patented Solution: The invention is a multi-layered food product structure that isolates the probiotics from the moisture-rich center Compl. ¶22 It consists of a high-moisture fruit "center," an intermediate "barrier layer" designed to substantially prevent moisture from migrating outwards, and an "outer layer" that contains the heat-sensitive probiotic cultures '267 Patent, abstract '267 Patent, col. 3:6-14 A key manufacturing step involves cooling the center before applying the outer probiotic layer to minimize heat damage to the cultures '267 Patent, abstract Compl. ¶22 Figure 1 of the patent illustrates this three-part structure with a center (12), barrier layer (14), and outer layer (16) Compl. ¶23
• Technical Importance: This layered approach allows for the creation of a commercially desirable, shelf-stable "functional food" that combines the appeal of a confectionery snack with the health benefits of probiotics, without requiring refrigeration Compl. ¶30

Key Claims at a Glance

• The complaint asserts independent claims 1, 20, 36, 44, and 57, among others Compl. ¶40
• Independent Claim 1 (Method):
  • combining a plurality of ingredients to produce a slurry;
  • cooking the slurry to produce a center for the food product, the center having a substantial moisture content;
  • applying a barrier layer to the center of the food product, the barrier layer adapted to substantially prevent migration of moisture from the center;
  • applying an outer layer over the barrier layer... the outer layer containing probiotic cultures; and
  • allowing the center of the food product to cool to substantially room temperature prior to applying the outer layer.
• Independent Claim 20 (Product):
  • a center having a substantial moisture content;
  • a barrier layer disposed over the center, the barrier layer adapted to substantially prevent migration of moisture from the center of the food product; and
  • an outer layer disposed over the barrier layer, the outer layer containing probiotic cultures.
• The complaint reserves the right to assert additional claims, including dependent claims Compl. ¶40 Compl. ¶42

U.S. Patent No. 11,317,640 - "Fruit Snack with Probiotics and Method of Manufacturing a Fruit Snack with Probiotics" (Issued May 3, 2022)

The Invention Explained

• Problem Addressed: As a continuation of the application leading to the '267 Patent, the '640 patent addresses the same technical problem of creating a shelf-stable, high-moisture food product with viable probiotics '640 Patent, col. 2:10-18 Compl. ¶21
• The Patented Solution: The '640 patent describes the same multi-layer solution as the '267 Patent: a moisture-rich center, a moisture-blocking barrier layer, and an outer layer containing probiotics applied after the center has cooled '640 Patent, abstract '640 Patent, Fig. 1 Compl. ¶23
• Technical Importance: The patent family aims to protect the core structural innovation that enables the combination of probiotics with shelf-stable fruit snacks Compl. ¶30

Key Claims at a Glance

• The complaint asserts independent claim 1, among others Compl. ¶49
• Independent Claim 1 (Method):
  • combining a plurality of ingredients to produce a slurry;
  • cooking the slurry to produce a center for the food product;
  • applying a barrier layer to the center of the food product;
  • allowing the center of the food product to cool; and
  • applying an outer layer over the barrier layer applied to the center of the food product.
• The complaint reserves the right to assert additional claims Compl. ¶49 Compl. ¶51

III. The Accused Instrumentality

Product Identification

• The accused products are Defendant's "Nature's Garden" brand coated confectionery products, including "Probiotic Strawberry Yoggies," "Probiotic Mixed Berry Yoggies," and other related products, collectively referred to as "Yoggies" Compl. ¶34

Functionality and Market Context

• The complaint alleges, "upon information and belief," that each Yoggie product is a yogurt-covered fruit-based product that includes a center, a barrier layer that prevents moisture migration, and an outer layer containing probiotics and/or other heat-sensitive components Compl. ¶31
• An advertisement for Yoggies, included as Figure 4 in the complaint, states that "Billions of probiotics are found in the creamy yogurt coating" and that the probiotics are "microencapsulated in our patented system, ensuring the power of each probiotic is maintained as it passes through your digestive system" Compl. ¶37, Fig. 4
• The complaint provides a cross-section photograph of an "Exemplary Yoggie" in Figure 2, which shows a dark center surrounded by a lighter-colored coating Compl. ¶37, Fig. 2
• Plaintiff alleges that Defendant copied its patented technology to "fast track its way to sales and profit" and capture market share Compl. ¶13

IV. Analysis of Infringement Allegations

The complaint alleges infringement but does not include the referenced claim chart exhibits. The following summary is based on the narrative infringement theory presented in the complaint.

'267 Patent Infringement Allegations

Claim Element (from Independent Claim 20)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
a center having a substantial moisture content;	The accused Yoggies products are described as yogurt-covered fruit-based products which allegedly include a center.	¶31	col. 5:1-4
a barrier layer disposed over the center, the barrier layer adapted to substantially prevent migration of moisture from the center of the food product;	The complaint alleges "upon information and belief" that Yoggies have a barrier layer that protects the probiotic cultures from moisture in the fruit center.	¶7; ¶31	col. 5:14-18
and an outer layer disposed over the barrier layer, the outer layer containing probiotic cultures.	The accused Yoggies products are advertised as having a "creamy yogurt coating" containing "Billions of probiotics."	¶31; ¶37, Fig. 4	col. 5:28-34

• Identified Points of Contention:
  • Evidentiary Question: A primary factual dispute will likely concern the existence and function of the "barrier layer." The complaint alleges its existence "upon information and belief" Compl. ¶31 The central question will be whether the accused Yoggies products contain a distinct structural layer that performs the claimed function of substantially preventing moisture migration, or if they consist of a simple two-layer structure (center and coating) that does not meet this limitation.
  • Scope Question: The analysis may turn on the definition of "barrier layer." The defense may argue that the term requires a specific composition or structure that is absent from the accused products, while the plaintiff may argue for a broader, more functional definition.

V. Key Claim Terms for Construction

• The Term: "barrier layer"

• Context and Importance: This term is the central inventive concept separating the claimed product from a simple coated fruit snack. The existence and nature of this layer in the accused product will be a determinative issue for infringement. Practitioners may focus on this term because the complaint's allegation of its existence is made "upon information and belief" Compl. ¶31, suggesting it may not be immediately apparent from visual inspection.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The claims define the layer functionally as being "adapted to substantially prevent migration of moisture" '267 Patent, claim 20 This could support an argument that any layer performing this function, regardless of its specific composition, meets the limitation.
  • Evidence for a Narrower Interpretation: The specification discloses specific examples for the barrier layer, including "commercial yogurt coating, zein protein, CMC gum, xanthan gum, dark chocolate and milk chocolate" '267 Patent, col. 5:19-23 A defendant may argue that the term should be construed as limited to these or structurally similar materials.

• The Term: "substantially prevent migration of moisture"

• Context and Importance: This functional language defines the required performance of the "barrier layer." The case may depend on how much moisture migration is permissible before prevention is no longer "substantial." The viability of the probiotics in the outer layer is directly tied to this function.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The patent does not provide a quantitative threshold for "substantial" prevention. Plaintiff may argue the term should be understood by a person of ordinary skill in the art in the context of achieving a shelf-stable product with viable probiotics, a qualitative standard.
  • Evidence for a Narrower Interpretation: A defendant may argue that the lack of a precise definition renders the term indefinite. Alternatively, they may point to successful examples in the patent (e.g., '267 Patent, Example 5, which retained over 92% of viable bacteria after one month) to argue for a high, quantitative standard of prevention that the accused products do not meet.

VI. Other Allegations

• Indirect Infringement: The complaint alleges inducement and contributory infringement for both patents Compl. ¶46 Compl. ¶55 Inducement allegations are based on Defendant's alleged encouragement of infringement through "descriptions on its website and related materials" Compl. ¶46
• Willful Infringement: The complaint makes specific allegations to support willfulness. It alleges that Defendant knew of the asserted patents since at least April 12, 2024, from an International Search Report it received Compl. ¶9 Compl. ¶43 The complaint further alleges that Defendant itself cited the publication for the '267 patent in an Information Disclosure Statement submitted to the USPTO in September 2025 Compl. ¶9 Compl. ¶43 This is presented as direct evidence of pre-suit knowledge of the patented technology.

VII. Analyst's Conclusion: Key Questions for the Case

1. A Core Evidentiary Question: Does the accused "Yoggies" product physically contain a distinct "barrier layer," separate from its fruit center and outer yogurt coating, that performs the claimed function of substantially preventing moisture migration? The resolution of this factual question, which the complaint pleads only on "information and belief," will be fundamental to the infringement analysis.

2. A Question of Claim Scope: How will the court construe the term "barrier layer"? Will it be defined broadly by its function of preventing moisture migration, or will it be limited to the types of compositions and structures disclosed in the patent's examples? The outcome of this construction will determine whether the accused product's alleged two-part structure can meet the three-part claim limitation.

3. A Question of Culpability: Assuming infringement is found, will the Defendant's alleged pre-suit knowledge-supported by specific allegations of receiving search reports and citing the patent in an IDS filing-be sufficient to meet the high standard for willful infringement and potential enhanced damages?