United States Court of Appeals

For the Eighth Circuit

___________________________

No. 18-3167

___________________________

Inline Packaging, LLC

lllllllllllllllllllllPlaintiff - Appellant

v.

Graphic Packaging International, LLC

lllllllllllllllllllllDefendant - Appellee

 ____________

Appeal from United States District Court 

for the District of Minnesota

 ____________

 Submitted: October 17, 2019

Filed: June 18, 2020

____________

Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges. 

____________

SMITH, Chief Judge. 

Inline Packaging, LLC (“Inline”) and Graphic Packaging International, LLC

(“Graphic”) are competitors in the susceptor-packaging market. Inline filed suit

against Graphic, alleging antitrust and tortious-interference claims. Both parties
moved for summary judgment, and the district court1

 granted Graphic’s motion. Inline

appeals. After reviewing the evidence and drawing all reasonable inferences most

favorably to Inline, we affirm. 

I. Background

A. Susceptor and Paperboard Packaging

Both Inline and Graphic produce susceptor packaging. Susceptor packaging is

a specialized food packaging that converts microwave energy into high temperatures,

which heat, crisp, and brown frozen foods. Graphic, unlike Inline, also manufactures

paperboard and carton packaging such as cereal boxes and soft drink cartons.

Additionally, consumer-packaged-goods (CPG) companies such as Nestlé, Conagra,

Heinz, Schwan’s, and Pinnacle represent the dominant purchasers of susceptor and

paperboard packaging and constitute some of Inline’s and Graphic’s customers. 

Graphic also negotiates “multi-year, multi-product supply agreements” with all

the CPG purchasers except for Nestlé. Appellee’s Br. at 12. Typical agreements cover

both susceptor and paperboard products, last for one to four years, and include

financial incentives and discounts such as “price caps, annual price reductions,

volume-based discounts, and signing bonuses.” Id. Such supply agreements “are

common in the industry.” Inline Packaging, LLC v. Graphic Packaging Int’l, LLC,

351 F. Supp. 3d 1187, 1195 (D. Minn. 2018).

In July 2015, when this lawsuit was filed, Graphic held nearly 95 percent of the

susceptor-packaging market in the United States, and Inline held approximately

4.6 percent. Meanwhile, the paperboard-packaging market was less concentrated and

intensely competitive. Graphic’s paperboard competitor, WestRock, reported revenue

of $15.5 billion in 2015, “which more than tripled Graphic’s revenue of $4.3 billion

1The Honorable Ann D. Montgomery, United States District Judge for the

District of Minnesota.

-2 -
for that year.” Id. at 1194. Other competitors include “International Paper, Burd &

Fletcher, and other regional and private label competitors.” Id. “Competition between

Graphic, WestRock, and International Paper is intensified because these three firms

are vertically integrated with paper mills.” Id. “[T]hese firms . . . must compete for

large paperboard orders that will enable them to operate” near or at full capacity

while also offering lower prices. Id. at 1195. Savvy buyers take advantage of their

purchasing options and stimulate vigorous competition in the paperboard packaging

market. 

B. Graphic’s Patent-Infringement Suit

Although Graphic’s patent-infringement claims against Inline are not part of

the present case, the context of the patent dispute illuminates this appeal. In 2001,

well before the patent litigation between Graphic and Inline ensued, Graphic and

Chef America, Inc. (“Chef America”)—Nestlé’s predecessor—partnered “on two

projects related to susceptor sleeve packaging: ‘Project Quantum’ involved increasing

filling in Hot Pockets; ‘Project Roxanne’ was the packaging component of Project

Quantum.” Appellant’s Br. at 7–8 (internal citations omitted). Graphic’s business

development director, Jeff Voyzey, served as the primary sales contact for these two

projects.

Graphic and Chef America developed an original design for the susceptor

sleeve in 2001. This design included a four-sided sleeve “with tear strips, pillow

packs, and gussets.” Inline Packaging, 351 F. Supp. 3d at 1199. Graphic created

drawings of Chef America’s concept and sold 500 sample sleeves to Chef America

for just over $3,600. In particular, Graphic sold drawing sample sleeves 50019D and

50019F.

-3 -
In 2005, Graphic and Nestlé entered into a Joint Development Agreement

(JDA) to redesign the susceptor sleeve.2 Graphic’s intellectual property

counsel—Barry Biddle—negotiated, drafted, and approved the JDA. The JDA

required Nestlé to provide “packaging criteria and concepts, assist Graphic as

requested, and . . . test concepts developed by Graphic.” Id. It also “provided for

seven years of mutual exclusivity—Nestlé would purchase 100% of its requirements

from Graphic and Graphic would not provide the same packaging to Nestlé’s

competitors—for any designs that Nestlé ultimately selected.” Id. 

In the JDA, Graphic and Nestlé also contemplated securing their intellectual

property with patents. “Inventions that were solely invented by one party were to

remain the property of the originating party. Inventions that were jointly invented

were to be owned jointly in accordance with the law governing such jointly owned

patents.” Id. (cleaned up).

Pursuant to the JDA and Project Roxanne, Graphic obtained several patents

that claimed priority to a provisional patent application filed on December 8, 2005,

and a non-provisional patent application filed on December 6, 2006. Four of the

patents are at issue in the instant litigation (the “asserted patents”).3 Graphic asserted

patent claims on the redesign of the susceptor sleeve for Nestlé’s frozen food

products, including its Hot Pockets® brand. The patents “claim unique sleeves with

a distinctive visual appearance that serve as containers for browning and/or crisping

food products in microwaves and as carrying containers after heating.” Appellee’s Br.

at 5.

2At this point, Nestlé had acquired Chef America. 

3The relevant patents at issue are designated as United States design patents

D694,106; D694,124; and D727,145. United States patent 8,872,078 (“’078

patent”)—designated as the main utility patent—has been declared unpatentable

based on obviousness. See infra n.4.

-4 -
On its patent applications, Graphic listed its employee—Kelly Fitzwater, a

computer-aided design (CAD) drafter—as the first and sole inventor of the redesign

claimed in the asserted patents. Fitzwater began the redesign process by modifying

drawing sample 50019D. However, Fitzwater did not work alone. Graphic and

Nestlé—through its former packaging engineer, Cory Brower—collaborated

throughout the entire process. Brower provided Graphic with certain concepts and

feedback while Fitzwater implemented those ideas into the ultimate redesign. During

the redesign process, Brower and Voyzey requested that Fitzwater add or delete

certain features from various drawings she created. After modifying the sleeve to

include only one tear down panel in drawing 51616G, Fitzwater signed three new

invention disclosures. That, in turn, triggered Graphic to seek full patent protection

for the completely revised design.

A few years later, in 2011, Inline secured Nestlé’s Kahiki susceptor-sleeve

business for 2012 and 2013. Graphic noted Inline’s rise as a serious competitor in the

susceptor-packaging market. This eventually prompted Graphic to “play the patent

card.” Inline Packaging, 351 F. Supp. 3d at 1198 (internal quotation omitted). 

Upon renewal of its susceptor-sleeve business in 2014, Nestlé held a one-day

auction to choose the companies that would supply susceptor sleeves for its Kahiki,

Croissant Pockets, and Hot Pockets® product lines. The auction’s terms and

conditions “provided that a two or three year contract would be awarded, that the

lowest bid price does not guarantee a business award, and that a formal contract

would be drafted after the auction that would take precedent over anything specified

in the [request for proposal].” Id. at 1196.

Using an online system, Nestlé initially informed Inline that it had been

awarded Nestlé’s entire susceptor-sleeve business. But Nestlé later decided to split

the business between Inline and Graphic after Graphic notified Nestlé “that it had

-5 -
patents on [the] susceptor sleeves [requested in the proposal], and that a new supplier

would likely be infringing those patents if Nestlé elected to steer its susceptor

business away from Graphic.” Id. at 1197. As a result, Nestlé awarded Inline its

Kahiki and Croissant Pockets product lines and awarded Graphic its Hot Pockets®

line, which represented about 90 percent of Nestlé’s entire susceptor-sleeve business.

In May 2015, Graphic sent a cease-and-desist letter to Inline asserting

infringement of its patents. Graphic’s letter stated its intention to sue Inline for patent

infringement if Inline failed to comply with its request. After Graphic notified Nestlé

about the cease-and-desist letter, Nestlé awarded Graphic a three-year extension in

which Nestlé had to purchase 85 percent or more of its 2016 susceptor-sleeve

business from Graphic. In June 2015, Graphic filed its patent-infringement suit

against Inline based on its asserted patents. See Graphic Packaging Int’l, LLC v.

Inline Packaging, LLC, No. 15-CV-03476-ECT-LIB, 2019 WL 4786148 (D. Minn.

Oct. 1, 2019).4

4Graphic initially filed suit against Inline in the District of Delaware. The

District of Delaware transferred the case to the District of Minnesota. Id. at *2.

Inline successfully petitioned for inter partes review of Graphic’s ’078 patent.

See id. The district court stayed Graphic’s patent-infringement case, and the United

States Patent Trial and Appeal Board (“Board”) eventually invalidated the ’078

patent. Id. After the Federal Circuit affirmed the Board’s decision, the district court

lifted the stay in the patent-infringement case. Id. Therefore, Graphic’s

patent-infringement case only involves the three design patents. Id. In October 2019,

the district court entered an order adopting Graphic’s claim construction for the

asserted patents, see id. at *5, and at the filing of this opinion, the case remains

pending. 

-6 -
C. Inline’s Antitrust Suit

Shortly after Graphic initiated its patent-infringement lawsuit against Inline,

Inline filed the instant antitrust suit against Graphic in July 2015. Inline alleged that

Graphic monopolized the susceptor-packaging market using anticompetitive conduct

in response to competition from Inline and other competitors. Inline asserted that

Graphic’s conduct prevented it from competing in the susceptor-packaging market.

Inline alleged that Graphic (1) possessed illegal monopoly power, in violation of

federal and state antitrust laws, and (2) tortiously interfered with Inline’s prospective

business and contractual relations.5

Specifically, Inline contended that Graphic fraudulently procured the asserted

patents, made baseless litigation threats relating to the asserted patents, and used

predatory-discount bundling in Graphic’s supply agreements with the CPG

companies. Inline also claimed tortious interference because of “Graphic’s assertions

to Nestlé that the Hot Pockets sleeve design was protected by the Asserted Patents.”

Inline Packaging, 351 F. Supp. 3d at 1201. 

Following various motions and discovery, the parties moved for summary

judgment in 2018. The district court granted Graphic’s motion, dismissing all of

Inline’s claims. It simultaneously denied Inline’s motion for partial summary

judgment. Inline subsequently filed this timely appeal.

5

In its complaint, Inline listed tortious interference with prospective business

relations as Count I; tortious interference with existing contractual relations as Count

II; illegal monopoly power, in violation of state law—Minn. Stat. § 325D.52—as

Count IV; and illegal monopoly power, in violation of federal law—the Sherman

Antitrust Act, codified at 15 U.S.C. § 2—as Count V. Inline’s claim for

misappropriation of trade secrets (Count III) is not raised on appeal; therefore, we

deem it waived. See Jenkins v. Winter, 540 F.3d 742, 751 (8th Cir. 2008).

-7 -
II. Discussion

A. Standard of Review

We review de novo a district court’s grant of summary judgment. In re

Wholesale Grocery Prods. Antitrust Litig., 752 F.3d 728, 732 (8th Cir. 2014). Our

review looks to see “whether the record evinces a ‘genuine dispute as to any material

fact.’” Id. at 733 (quoting Fed. R. Civ. P. 56(a)). We will affirm only if “the evidence,

viewed in the light most favorable to . . . [Inline], demonstrates that there is no

genuine issue of material fact and that . . . [Graphic] is entitled to judgment as a

matter of law.” Warner Bros. Entm’t v. X One X Prods., 644 F.3d 584, 591 (8th Cir.

2011) (quoting Schoolhouse, Inc. v. Anderson, 275 F.3d 726, 728 (8th Cir. 2002)).

B. Antitrust Claims

Inline maintains that Graphic is a monopolist in the United States

susceptor-packaging market and that Graphic achieved monopoly power through

anticompetitive conduct. Inline contends that the district court erred in dismissing its

claims against Graphic for fraudulent procurement, sham threats and litigation, and

predatory-discount bundling. It also argues that its exclusive-dealing claim was

properly pleaded before the district court.

Inline brings these antitrust claims under both the Sherman Antitrust Act and

Minnesota state law. See 15 U.S.C. § 2; Minn. Stat. § 325D.52. “Minnesota antitrust

law is generally interpreted consistently with federal antitrust law.” Lorix v.

Crompton Corp., 736 N.W.2d 619, 626 (Minn. 2007). 

“Section 2 of the Sherman Act prohibits monopolizing, or attempting to

monopolize any part of the trade or commerce among the several States.” Concord

Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1060 (8th Cir. 2000) (cleaned up).

Inline must prove the following to establish a Section 2 violation: “1) . . . [Graphic]

possessed monopoly power in the relevant market and 2) . . . [Graphic] willfully

-8 -
acquired or maintained this monopoly power by anticompetitive conduct as opposed

to gaining that power as a result ‘of a superior product, business acumen, or historical

accident.’” Id. (quoting United States v. Grinnell Corp., 384 U.S. 563, 571 (1966)).

“Monopoly power is defined as the power to control prices or exclude competition.”

Id. (internal quotation omitted).

1. Fraudulent Procurement

Patent fraud, also referred to as Walker Process fraud, can support an illegal

monopolization claim under 15 U.S.C. § 2. See Walker Process Equip., Inc. v. Food

Mach. & Chem. Corp., 382 U.S. 172 (1965).

Walker Process set forth two conditions for antitrust liability based on

the fraudulent procurement of a patent. First, the plaintiff must show that

the defendant procured the relevant patent by knowing and willful fraud

on the [United States Patent and Trademark Office (USPTO)] or . . . that

the defendant maintained and enforced the patent with knowledge of the

fraudulent manner in which it was obtained. Second, the plaintiff must

prove all the elements otherwise necessary to establish a Sherman Act

monopolization charge.

Ritz Camera & Image, LLC v. SanDisk Corp., 700 F.3d 503, 506 (Fed. Cir. 2012)

(citing Walker Process, 382 U.S. at 174, 176–77).

To establish knowing and willful fraud, Inline must show an “intent to deceive

or, at least, a state of mind so reckless as to the consequences that it is held to be the

equivalent of intent (scienter).” Hydril Co. LP v. Grant Prideco LP, 474 F.3d 1344,

1349 (Fed. Cir. 2007) (internal quotation omitted). This seems to be “nearly identical”

to the evidentiary showing of inequitable conduct. TransWeb, LLC v. 3M Innovative

Props. Co., 812 F.3d 1295, 1307 (Fed. Cir. 2016). Inequitable conduct is

demonstrated when “a district court . . . find[s] by clear and convincing evidence that

a patent applicant breached its duty of candor and good faith to the [USPTO] by

-9 -
failing to disclose material information, or submitting false material information, with

an intent to deceive the [US]PTO.” Monsanto Co. v. Bayer Bioscience N.V., 514 F.3d

1229, 1233–34 (Fed. Cir. 2008).

On appeal, Inline first argues that the district court erred in not finding, at the

very least, a genuine factual dispute as to whether Graphic fraudulently “procured

patents on packaging concepts and designs through false claims of inventorship” of

the asserted patents and fraudulently concealed prior sales of drawing sample sleeves

50019D/F. Appellant’s Br. at 26. 

a. Inventorship

As to inventorship, Inline disputes whether Fitzwater, the CAD drawer, is

really the first and sole inventor of the susceptor-sleeve redesign claimed in Graphic’s

asserted patents. It argues, “At most, [Fitzwater] assisted Nestl[é] personnel after they

conceived of the claimed design concepts. Fitzwater thus provided no more than

general assistance in Nestl[é]’s development of new sleeve designs—which is

insufficient for her to be an inventor.” Id. at 31. Without providing the names of

Nestlé’s inventors or co-inventors, Inline suggests that Graphic fraudulently obtained

the asserted patents by deceiving the USPTO. In addition, Inline asserts that “[t]he

district court . . . ignored . . . evidence showing Brower and Nestl[é]’s contributions,

testimony connecting those contributions to the Asserted Patents, Inline’s patent

expert’s analysis, documents . . . demonstrat[ing] Graphic’s knowledge of Nestl[é]’s

contributions and plans to apply for patents . . . , the modified and false invention

disclosure forms, and Graphic’s ulterior motives.” Id. at 33.

In its analysis, the district court found that no former or current employee at

Nestlé claims to be an inventor or co-inventor with Fitzwater. Based on this, the court

concluded that Graphic did not act with the requisite intent to deceive the USPTO.

After examining the record, we concur. No genuine dispute of material fact exists

-1 0-
when the record lacks evidence demonstrating that Nestlé solely or jointly invented

the redesign of the susceptor sleeve claimed in the asserted patents. Brower, who is

Nestlé’s former packaging engineer, did not declare that he invented or co-invented

the redesign, and currently, Nestlé has not come forth with any claims to the redesign

covered by the asserted patents. 

The district court’s analysis accords with Pro-Mold & Tool Co. v. Great Lakes

Plastics, Inc., 75 F.3d 1568 (Fed. Cir. 1996). “When an alleged omitted co-inventor

does not claim to be such, it can hardly be inequitable conduct not to identify that

person to the [US]PTO as an inventor.” Id. at 1576. Neither Inline nor Nestlé has

identified any alleged Nestlé inventor or co-inventor of the susceptor sleeve’s new

design, and Inline’s attempt to distinguish Pro-Mold fails. Pro-Mold involved an

alleged co-inventor who “agreed that it was his father who conceived the idea [that

was claimed in the patent].” Id. Inline asserts that “neither Brower, nor anyone else

at Nestl[é], has affirmatively disclaimed inventorship” like the alleged co-inventor

in Pro-Mold. Appellant’s Br. at 32 (emphasis added). This may be true, but Inline

ignores that neither Brower nor any Nestlé employee has affirmatively claimed

inventing the redesign of the susceptor sleeve covered by the asserted patents. On this

record, we therefore affirm the district court’s dismissal of Inline’s claim of

fraudulent procurement of the asserted patents based on false inventorship.

b. Prior Sales

Inline further contends that “Graphic also defrauded the USPTO by concealing

highly-material prior sleeve sales to Nestl[é]. There is no dispute that prior sales of

the 50019D/F designs (. . . [used by] Fitzwater . . .) took place.” Appellant’s Br. at 34.

Graphic does not dispute that these prior sales occurred,6 but it argues that no genuine

6

Invalidating a patent on the basis of prior sales, also known as the on-sale bar,

“is triggered when a claimed invention is: (1) ready for patenting; and (2) the subject

of a commercial offer for sale prior to the critical date.” Merck & Cie v. Watson Labs.,

-1 1-
dispute exists as to the material facts: (1) Graphic’s employees who owed a duty of

candor to the USPTO did not know that the prior sales were material, and (2) such

sales were indeed immaterial.

“Congress has imposed several conditions on the limited opportunity to obtain

a property right in an idea. One such condition is the on-sale bar, which reflects

Congress’[s] reluctance to allow an inventor to remove existing knowledge from

public use by obtaining a patent covering that knowledge.” Helsinn Healthcare S.A.

v. Teva Pharm. USA, Inc., 139 S. Ct. 628, 632 (2019) (cleaned up). “Every patent

statute since 1836 has included an on-sale bar.” Id. at 633. The applicable statute

here, 35 U.S.C. § 102, prohibits patentability if “the claimed invention was . . . on

sale, or otherwise available to the public” more than one year before the filing of a

patent application. 35 U.S.C. § 102(a)(1), (b)(1) (emphasis added). 

“Applicants for patents are required to prosecute patent applications in the

[US]PTO with candor, good faith, and honesty.” Molins PLC v. Textron, Inc., 48 F.3d

1172, 1178 (Fed. Cir. 1995) (internal footnote omitted). “A breach of this duty

constitutes inequitable conduct.” Id. Inequitable conduct can certainly arise out of

one’s failure to disclose information that is material—such as prior sales—with the

intent to deceive the USPTO. Id.; see also Therasense, Inc. v. Becton, Dickinson &

Co., 649 F.3d 1276, 1290 (Fed. Cir. 2011) (en banc). Moreover, various individuals

may be subject to this duty. 

[T]he duty to disclose information material to patentability rests on the

inventor, on each attorney or agent who prepares or prosecutes an

application and on every other individual who is substantively involved

in the preparation or prosecution of the application and who is

Inc., 822 F.3d 1347, 1351 (Fed. Cir. 2016). 

-1 2-
associated with the inventor, with the assignee, or with anyone to whom

there is an obligation to assign the application. 

Molins, 48 F.3d at 1178 n.6 (citing 37 C.F.R. § 1.56). 

Here, Inline contends that certain Graphic employees owed a duty to disclose

to the USPTO that the 50019D/F design samples were sold to Chef America in 2001,

more than a year before Graphic filed applications for the asserted patents in 2005

and 2006. According to Inline, the following employees owed this duty: Fitzwater,

the CAD drawer; Biddle, the intellectual property counsel; and Voyzey, the business

development director. We agree with the district court that there is no “need [to]

resolve the issue of whether the prior sales were material” to the patentability of the

asserted patents “because even if they were [material],[7] Inline has offered no

. . . clear and convincing evidence . . . that anyone at Graphic owing a duty of candor

to the [US]PTO knew that the prior sales were material [and] deliberately chose not

to disclose them.” Inline Packaging, 351 F. Supp. 3d at 1204 (emphasis added).

Inline makes two arguments. First, Inline avers that “despite knowing

Graphic’s long-term relationship with Nestl[é] and the origins of the patented sleeve

designs, neither Fitzwater [n]or Biddle conducted any due diligence in connection

with the submissions to the USPTO related to similar designs created and sold in the

past.” Appellant’s Br. at 35. It insists that the district court improperly assessed the

credibility of Fitzwater’s and Biddle’s testimonies, decided factual disputes, and, in

turn, “invad[ed] the province of the jury.” Id. at 36. Second, Inline infers that because

7

“[I]n assessing the materiality of a withheld reference, the court must

determine whether the [US]PTO would have allowed the claim if it had been aware

of the undisclosed reference.” Therasense, 649 F.3d at 1291. A court making this

patentability determination “should apply the preponderance of the evidence standard

and give claims their broadest reasonable construction.” Id. at 1291–92. 

-1 3-
Voyzey “made the prior sales to Nestl[é],” he somehow knew that those sales were

material to the claimed design in the asserted patents. Id. at 38. 

We begin with the latter argument. Simply put, the record lacks evidence that

Voyzey, Graphics’s business development director, knew that the sales were material

to the patentability of the asserted patents. Further, as the district court concluded, the

record does not show that Fitzwater knew of the 50019F design or that she knew

Graphic had sold samples of both designs to Chef America in 2001. She became

involved with Project Roxanne in 2005 and used the 50019D design as a starting

point to begin the redesign of the susceptor sleeve for Nestlé’s products. She testified

that, after months of drawings and revisions, the original design of 50019D was

transformed into a different and new sleeve. Likewise, Biddle testified that his

employment at Graphic began in 2004 and that he simply did not know anything

about Project Quantum or the sales to Chef America, which had occurred three years

before the start of his employment. 

Despite Inline’s contention that Fitzwater and Biddle should have exercised

due diligence before filing the asserted patent applications, it is well-established “that

a duty to investigate does not arise where there is no notice of the existence of

material information.” Brasseler, U.S.A. I, L.P. v. Stryker Sales Corp., 267 F.3d 1370,

1382 (Fed. Cir. 2001). This case differs from Brasseler. There, the patentee’s

attorneys had been notified of an event with the potential of creating an on-sale bar.

Id. at 1376. They, nevertheless, chose not to further investigate before filing the

patent application claiming priority to a newly-invented surgical blade. Id. at

1374–76. Here, neither Fitzwater nor Biddle had been notified about the existence of

material information, and accordingly, they did not need to “pursue a fishing

expedition to obtain [it].” Id. at 1382. 

-1 4-
Significantly, “a finding of deceptive intent may not be based solely on gross

negligence, including instances in which . . . [Fitzwater or Biddle] [was] completely

unaware of the existence of specific information later discovered and found to be

material.” Id. And “when there are multiple reasonable inferences that may be drawn,

intent to deceive cannot be found.” Therasense, 649 F.3d at 1290–91. Instead, to meet

the clear and convincing standard, the evidence must establish that “the single most

reasonable inference” to be drawn is that Fitzwater, Biddle, and Voyzey acted with

a specific intent to deceive the USPTO. Id. at 1290 (internal quotation omitted). The

evidence here does not establish such. Hence, we affirm this claim’s dismissal and

hold that the record lacks direct or circumstantial evidence that Graphic’s employees

acted with the requisite intent to deceive the USPTO. See id.

Because we hold that Inline cannot establish the first condition of its Walker

Process claims—knowing and willful fraud—we need not analyze the other elements

of a monopolization claim under 15 U.S.C. § 2.

2. Sham Threats and Litigation

In addition to its Walker Process claims, Inline presents an additional theory

of antitrust liability: “claims for sham threats and litigation alleging that Graphic

knew the Asserted Patents were invalid when it subsequently asserted the patents in

2014 and 2015.” Appellant’s Br. at 40. Inline argues that the district court

erroneously characterized these claims as “‘recycled version[s]’ of its Walker Process

claims.” Id. (alteration in original). 

The Noerr-Pennington[8] doctrine immunizes acts related to the

constitutional right to petition the courts for grievance, unless the act is

8

See United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965); E.R.R.

Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961).

-1 5-
a mere sham. The First Amendment to the United States Constitution

provides that Congress shall make no law abridging the right to petition

the Government for a redress of grievances. The Noerr-Pennington

doctrine, which arose in the context of antitrust claims, provides

immunity from claims that are based on the filing of lawsuits. 

Select Comfort Corp. v. Sleep Better Store, LLC, 838 F. Supp. 2d 889, 896 (D. Minn.

2012) (internal quotation omitted). The sham exception to the Noerr-Pennington

doctrine consists of two elements:

First, the lawsuit must be objectively baseless in the sense that no

reasonable litigant could realistically expect success on the merits. If an

objective litigant could conclude that the suit is reasonably calculated to

elicit a favorable outcome, the suit is immunized under Noerr, and an

antitrust claim premised on the sham exception must fail. Only if

challenged litigation is objectively meritless may a court examine the

litigant’s subjective motivation. Under this second part of [the]

definition of sham, the court should focus on whether the baseless

lawsuit conceals an attempt to interfere directly with the business

relationships of a competitor through the use of the governmental

process—as opposed to the outcome of that process—as an

anticompetitive weapon.

Prof’l Real Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60–61

(1993) (cleaned up).

In this instance, Graphic accurately states, “Inline’s attempt to meet these

requirements relies exclusively on the same facts that allegedly constitute fraudulent

conduct before the [US]PTO.” Appellee’s Br. at 37 (citing Appellant’s Br. at 41

(“Graphic’s assertion of its patents and pursuit of the infringement litigation was

‘objectively baseless’ in light of, inter alia, Graphic’s collaboration with Nestlé; the

-1 6-
terms of the JDA; and direct evidence of incorrect inventorship and prior sales.”)).

Based on our previous discussion in Part II.B.1, we conclude that Inline cannot meet

the objectively baseless element of the sham exception to the Noerr-Pennington

doctrine. As we stated above, Inline did not evidence fraud related to Graphic’s

procurement of the asserted patents and its prior sales of drawing sample sleeves

50019D/F. It has not established why the same set of facts and evidence would render

Graphic’s patent-infringement litigation objectively baseless; consequently, we affirm

the district court’s dismissal of Inline’s sham-litigation claim. As a result, we need not

address Graphic’s subjective intent under the exception.

3. Discount Bundling

Next, Inline asserts that the district court misconstrued its discount-bundling

claim as a tying claim. The bundle discounts relate to Graphic’s supply agreements

with the CPG companies that include both susceptor and paperboard packaging.

Inline also asserts that the district court erroneously applied its own economic policy

and impermissibly weighed expert testimony to dismiss Inline’s allegations that

Graphic’s bundled discounts were a part of Graphic’s anti-competitive scheme. 

Graphic responds by arguing that “Inline’s antitrust bundling claim fails

because there was no evidence Graphic had monopoly/market power in paperboard,

which Inline’s own expert admitted was necessary.” Appellee’s Br. at 16. It adds that

even if Inline can establish that Graphic had monopoly or market power related to

Graphic’s paperboard sales, Inline cannot refute that “Graphic’s prices were above

cost.” Id. And, even if Inline can establish Graphic’s monopoly or market power and

below-cost pricing, Graphic contends that Inline’s arguments still fall short of

demonstrating harm to competition. 

The Ninth Circuit has defined “[b]undling [a]s the practice of offering, for a

single price, [multiple] goods . . . that could be sold separately. A bundled discount

-1 7-
occurs when a firm sells a bundle of goods . . . for a lower price than the seller

charges for the goods . . . purchased individually.” Cascade Health Sols. v.

PeaceHealth, 515 F.3d 883, 894 (9th Cir. 2008). Put differently, a bundled package

provides cost savings without coercing one to purchase it. Id. at 900. Conversely, a

tying claim requires the plaintiff to prove that a defendant coerced the plaintiff to

accept the products and cost savings. Id. We first note that the district court properly

viewed Inline’s arguments as a discount-bundling claim. 

Our circuit has not adopted a standard for determining when discount bundling

turns anti-competitive; so, this issue is one of first impression for this court.9 The

district court endorsed and applied the Ninth Circuit’s approach, the

discount-attribution test. Cascade Health, 515 F.3d at 894–909. In its opposition to

Graphic’s summary-judgment motion, Inline applied both the discount-attribution test

and the Third Circuit’s LePage’s standard and contended that Graphic’s motion fails

under either approach. See LePage’s Inc. v. 3M, 324 F.3d 141 (3d Cir. 2003) (en

banc). 

Upon review, we find it unnecessary to adopt either approach at this time. Both

approaches require Inline to establish that Graphic is a monopolist or, at the very

least, holds sufficient market power in the relevant or leveraging market. For

purposes of Inline’s discount-bundling claim, the relevant or leveraging market is the

market for its paperboard sales.10 Inline essentially argues that Graphic’s power in the

9We did analyze a discount-bundling claim in Southeast Missouri Hospital v.

C.R. Bard, Inc., 616 F.3d 888, 889 (8th Cir. 2010), but we later vacated that decision

in Southeast Missouri Hospital v. C.R. Bard, Inc., 642 F.3d 608 (8th Cir. 2011).

10“Antitrust claims often rise or fall on the definition of the relevant [or

leveraging] market. The definition of the relevant market has two components—a

product market and a geographic market.” Double D Spotting Serv., Inc. v. Supervalu,

-1 8-
paperboard-packaging market allows it to offer discounts on bundles of susceptor and

paperboard packaging. Such power would enable Graphic to “foreclose portions of

the [susceptor] market” to competitors that do not offer both products. LePage’s Inc.,

324 F.3d at 155. But Inline has not shown that Graphic holds sufficient monopoly or

market power regarding its paperboard sales to avoid summary judgment in Graphic’s

favor. See Concord Boat, 207 F.3d at 1060 (“To establish a Section 2 violation,

plaintiffs must show that . . . the defendant possessed monopoly power in the relevant

market . . . .”). 

Again, “[m]onopoly power is defined as the power to control prices or exclude

competition.” Id. (internal quotation omitted). And “[m]arket power generally is

defined as the power of a firm to restrict output and thereby increase the selling price

of its goods in the market.” Ryko Mfg. Co. v. Eden Servs., 823 F.2d 1215, 1232 (8th

Cir. 1987). “Market power may be shown by a firm’s percentage of sales in the

market, especially where there is a strong consumer preference for the firm’s product

. . . and where there are significant barriers either to the entry of new firms or to

increased output by existing firms.” Id. The district court correctly pointed out that

Inline’s economic expert, Dr. James Levinsohn, acknowledged that proof of at least

some market power in the relevant or leveraging market is needed for Inline’s

discount-bundling theory to be viable. Dr. Levinsohn, nonetheless, never ascribed any

monopoly or market power to Graphic in the paperboard-packaging market, and

Graphic’s monopoly or market power in the susceptor-packaging market does not

suffice to show Graphic’s power in the paperboard-packaging market. Graphic also

faced intense competition from paperboard-packaging companies such as WestRock

Inc., 136 F.3d 554, 560 (8th Cir. 1998) (cleaned up). The evidence does not even

show that Inline has truly defined the proper product and geographic components of

the paperboard-packaging market. But we will assume that the market has been

properly defined. 

-1 9-
and International Paper. Thus, we affirm the district court’s dismissal of Inline’s

discount-bundling claim.

Relatedly, we hold that the district court adequately assessed the record and did

not abuse its discretion in dismissing Dr. Levinsohn’s untimely market opinion.

Given during deposition, his opinion—that Graphic’s accounting margins

demonstrated it held sufficient market power in the paperboard-packaging

market—came too late. Dr. Levinsohn offered this testimony after the submission of

his expert reports without a sufficient justification for the delay. See, e.g., White v.

Howmedica, Inc., 490 F.3d 1014, 1016 (8th Cir. 2007) (“We review the district

court’s sanction of excluding . . . expert testimony for an abuse of discretion and find

none here.” (internal footnote and citation omitted)).

4. Exclusive Dealing11

The parties also dispute whether Inline properly pleaded a claim based on the

“antitrust implications of the exclusivity provisions of Graphic’s bundles, and

Graphic’s exclusive arrangement with Nestl[é], which together foreclosed

competition for more than 85% of the susceptor market.” Appellant’s Br. at 59. The

district court rejected the claim on the basis that “[t]he operative Complaint, even

broadly construed, does not allege an exclusive dealing claim.” Inline Packaging, 351

F. Supp. 3d at 1213. The district court did not err in doing so. “[W]hile we recognize

that the pleading requirements under the Federal Rules are relatively permissive, they

do not entitle parties to manufacture claims, which were not pled, late into the

11“Exclusive dealing will generally only be unlawful where the market is highly

concentrated, the defendant possesses significant market power, and there is some

element of coercion present.” ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 284 (3d

Cir. 2012). “For example, . . . [a] defendant occup[ying] a dominant position in the

market” has “the power to exclude rivals” through “its exclusive dealing

arrangements.” Id. 

-2 0-
litigation for the purpose of avoiding summary judgment.” N. States Power Co. v.

Fed. Transit Admin., 358 F.3d 1050, 1057 (8th Cir. 2004). 

Inline’s operative complaint includes five claims that discuss tortious

interference, misappropriation of trade secrets, and antitrust theories based on patent

invalidity, sham litigation, and discount bundling. After viewing the record, we found

no order granting leave to file an amended complaint. Neither do Inline’s record

citations clearly show that it had actually pleaded a claim for exclusivity. 

This court has declined to search a record for factual disputes where a party has

not made sufficient citations to the record. A similar principle applies in this case to

a search for an allegedly pleaded claim where the record consists of over 1,000 docket

entries. Cf. Johnson Tr. of Operating Eng’rs Local #49 Health & Welfare Fund v.

Charps Welding & Fabricating, Inc., 950 F.3d 510, 524 (8th Cir. 2020) (“Even if

there is some relevant information in the record, this court will not mine a summary

judgment record searching for nuggets of factual disputes to gild a party’s

arguments.” (internal quotation omitted)). The district court did not abuse its

discretion in rejecting Inline’s exclusive-dealing claim.12 See WireCo WorldGroup,

Inc. v. Liberty Mut. Fire Ins. Co., 897 F.3d 987, 992 (8th Cir. 2018) (applying abuse

of discretion standard).

C. Tortious-Interference Claims

Finally, we address Inline’s claims for tortious interference with prospective

business and contractual relations.13 The prospective business interference relates to

12Even if we were to consider this claim, we would dismiss it for the reasons

set forth in Part II.B.3.

13“To establish a claim of tortious interference with a prospective business

relationship, a plaintiff must prove the defendant intentionally committed a wrongful

-2 1-
Nestlé’s 2014 and 2016 awards of its susceptor-sleeve business to Graphic, and the

contractual claim pertains specifically to the 2014 award.

The Federal Circuit has “held that federal patent law preempts state-law tort

liability for a patentholder’s good faith conduct in communications asserting

infringement of its patent and warning about potential litigation.” Globetrotter

Software, Inc. v. Elan Comput. Grp., Inc., 362 F.3d 1367, 1374 (Fed. Cir. 2004).

“State-law claims such as [Inline]’s can survive federal preemption only to the extent

that those claims are based on a showing of ‘bad faith’ action in asserting

infringement.” Id. This is equivalent to the objectively baseless element of the sham

exception to the Noerr-Pennington doctrine. See id. at 1375. 

We have already determined the record does not demonstrate that Graphic

fraudulently procured its asserted patents or that its patent-infringement threats and

suit were objectively baseless. Therefore, Inline’s tortious-interference claims cannot

survive federal preemption. We conclude that the district court properly dismissed

Inline’s tortious-interference claims.14

act which improperly interfered with the prospective relationship.” Hunt v. Univ. of

Minn., 465 N.W.2d 88, 95 (Minn. Ct. App. 1991). And “[a] cause of action for

tortious interference with a contractual relationship requires five elements: (1) the

existence of a contract; (2) the alleged wrongdoer’s knowledge of the contract; (3)

intentional procurement of its breach; (4) without justification; and (5) damages.”

Kallok v. Medtronic, Inc., 573 N.W.2d 356, 362 (Minn. 1998) (internal quotation

omitted).

14The district court dismissed Inline’s contractual-related claim for an

additional reason. It found that Inline and Nestlé had not formed a contract involving

Nestlé’s entire susceptor-sleeve business when Nestlé had decided to split its business

between Inline and Graphic in 2014. For the reasons stated in the district court’s

order, we too agree that a contract did not exist. See Inline Packaging,

-2 2-
III. Conclusion

Accordingly, we affirm the district court’s grant of summary judgment in

Graphic’s favor. 

______________________________

351 F. Supp. 3d at 1215–16. 

-2 3-