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Keurig Plans to Lock Out Third-Party K-Cups From its New Coffee Makers, But Is it Legal?

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Keurig Green Mountain   (NASDAQ: GMCR  ) wants to keep companies from selling unlicensed coffee pods for its popular line of K-Cup brewers. 

The company, which changed its name from Green Mountain Coffee Roasters March 10, plans to include interactive readers in its new Keurig 2.0 machines being released this fall that are programmed to work only with Keurig-licensed pods, Geekwire reported. The company makes most of its money from sales of the pods, a revenue stream that has been threatened by non-partners creating and selling cheaper pods without cutting Keurig in on the action.

Keurig gets sued

TreeHouse foods, which makes unlicensed K-Cups that generally sell for less than the ones from Keurig and its partners, has filed a lawsuit to stop the inclusion of the lockout technology in the new machines. In the lawsuit, TreeHouse acknowledges that until 2012, Keurig had patents that allowed it to keep competitors out. Since those patents have expired, the company alleges Keurig is using technology to improperly keep competitors from making K-Cup alternatives.

The key complaint can be found in this excerpt from the lawsuit.

"Green Mountain has announced a new anticompetitive plan to maintain its monopoly by redesigning its brewers to lock out competitors' products. Such lock-out technology cannot be justified based on any purported consumer benefit, and Green Mountain itself has admitted that the lock-out technology is not essential for the new brewers' function. Like its exclusionary agreements, this lock-out technology is intended to serve anticompetitive and unlawful ends."

Keurig has not issued a formal comment on the lawsuit but did take to Twitter to discuss its technology. "Our Keurig 2.0 brewer will deliver new interactive-enabled benefits which will require it to identify the inserted pack," said a Tweet from the @Keurig account.

Keurig CEO Brian P. Kelley did speak about the technology at a February conference in Florida, Scott Kirsner of The Boston Globe reported.

"We are a technology company in the beverage business," Kelley told the audience.

Keurig is following a path popular with technology companies, Kirsner wrote, "using software as a way to lock customers into a particular set of high-margin products. Microsoft (NASDAQ: MSFT), Apple (NASDAQ: AAPL), and the printer-maker Lexmark (NYSE: LXK) have all waged legal battles to control their 'ecosystems,' which in Lexmark's case has meant trying to keep refurbished ink cartridges out of their printers."

Is what Keurig is doing legal?

Treehouse faces a difficult legal fight in its battle with Keurig -- in addition to the precedents in other industries cited by Kirsner, the law may be on the side of the manufacturer of the popular brewers. Intellectual property attorney Jacob Koering, a partner at Freeborn & Peters LLP in Chicago, told the Fool he believes Keurig has the right to keep other companies of its platform. In an email interview, he wrote:

"Treehouse Foods sued GMCR under the Sherman and Clayton Antitrust Acts based on allegations that it is improperly using its monopoly power in various ways. One of the allegations by Treehouse was that the introduction of a "new" Keurig single cup brewer, called Keurig 2.0, is an antitrust violation because the new brewer will deliberately not be backwards compatible. In other words, GMCR is making an affirmative decision not to allow the old-style "K-Cups" to be used on its new brewer. The purpose of antitrust law is to prevent a company with monopoly power from improperly using that power to the detriment of consumers and other competitors. But, GMCR's decision to limit the functionality of its Kuerig 2.0 brewer can hardly be considered a negative decision for its competitors. In fact, it opens up a huge market opportunity for a new single-cup manufacturer (or existing manufacturers like Nestle and Starbucks) to step in and fill that void."   

According to Koering, "the complaint filed by Treehouse Foods does not appear to have a strong likelihood of success." There is a possibility however that TreeHouse could win based on another argument, Koering wrote. 

The one potential caveat here is that Treehouse has made allegations that Keurig/GMCR has entered into supplier agreements that make it essentially impossible to sell single-use cups for any other kind of brewer than Keurig. Without seeing the particulars of the supplier agreements, it is difficult to measure the veracity of that claim. That being said, if indeed Keurig's supplier agreements make the single-server pod supplier market captive to the brewer products sold by Keurig, Treehouse may have a strong claim. Essentially, the nature of that claim would be that Keurig is illegally extending its patent monopoly (for the now-expired K-cup patent) by entering into agreements that would prevent others from entering and competing in that now-expired patent market.

How big is the K-Cup market?

In the first quarter of 2014 Keurig sold $931 million worth of coffee packs (which would primarily be K-Cups, but would also include packs for its less-successful Vue brewing system). That number was an 8% increase over the $863 million in packs it sold during the same quarter the previous year.

The company expects that growth to continue, though it acknowledged the impact of unlicensed packs in its first quarter earnings report. The company said it expects "net sales growth of low-to-mid single digits over the second quarter of fiscal year 2013 due to year-over-year pack sales comparisons; the impact of unlicensed packs; and the currency headwind in Canada."

Should Keurig do this?

Even if Keurig loses it's probably worth it for the company to show its partners (who pay for the right make licensed K-Cups) that it will vigorously fight to keep non-licensed brands out. If it loses, Keurig also loses negotiating power with its biggest partners. Smaller companies may benefit from being an official Keurig partner but major players including Dunkin' Donuts  (NASDAQ: DNKN  ) and Starbucks  (NASDAQ: SBUX  )  likely don't need the affiliation if they could sell packs that work on K-Cup machines without paying Keurig.

Keurig does not break down how much revenue it makes from licensed K-Cups versus the ones sold under its own name in its quarterly reports, but the company is partners with nearly every major player in the coffee world. In its 2013 annual report, Keurig acknowledged that failure to maintain its partnerships could adversely impact the business.  

Since coffee pack sales have increased since Keurig's patents expired it's reasonable to predict that non-licensed K-Cups won't crush Keurig. The company should be worried about its partners deciding there is no reason to pay a licensing fee. Keurig may not win the legal right to lockout competitors but it should fight aggressively to keep the legal question open in order to keep its partners from becoming competitors.

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Read/Post Comments (5) | Recommend This Article (2)

Comments from our Foolish Readers

Help us keep this a respectfully Foolish area! This is a place for our readers to discuss, debate, and learn more about the Foolish investing topic you read about above. Help us keep it clean and safe. If you believe a comment is abusive or otherwise violates our Fool's Rules, please report it via the Report this Comment Report this Comment icon found on every comment.

  • Report this Comment On March 12, 2014, at 11:20 AM, 1dms wrote:

    Nice article. I do not understand, however, what "void" it is that GMCR is leaving open? They will still be competing for 1.0 owners. This is a step a new single cup manufacturer could have taken in the last year and a half without GMCR moving to the 2.0, right? Exactly what Treehouse has been trying to do. You are probably going to point out something obvious resulting in me giving myself a dope slap so in advance, doh...Thank you.

  • Report this Comment On March 13, 2014, at 4:44 PM, JR8484 wrote:

    The purpose of patent law is to reward innovation, but the intent is that inventions eventually become part of public domain so ultimately there is competition and consumers are protected - this is the spirit of capitalism. If patents didn't expire we'd all be paying $300,000 for our cars.

    GMCR needs to embrace the fact that they are already the “Coke” of the coffee world, but there will be a Pepsi, a Jones Soda, etc. The sooner they recognize the fact that they can survive and thrive even in an open market, the more stable their business will be. They are their own worst enemy as their anti-competitive activities only feed the fear within the financial community that they need a monopoly in order to be a successful, growing company.

    For consumers that do buy the 2.0, they will quickly realize that it won’t brew all the cups on the market. When it doesn’t brew the cups the customer likes, back the 2.0 goes to the retailer. Retailers inundated with returns will demand change. Its going to be a mess.

  • Report this Comment On March 26, 2014, at 6:27 PM, mickey7 wrote:

    1dms, that would be a very good point if these machines had a nice long life-expectancy, but they don't. I have one friend whose hubby has been able to resuscitate their Keurig and make it last a couple of years, but everyone else (me included) needs to replace the actual machine every 18 months or so. It's not just their k-cups that are consumable. The device itself is great while it lasts, but it doesn't last all that long (IMO-granted I'm a 'three cup a dayer').

    I've been through two Keurigs and even though I really like them, was considering switching brands anyway due to the short life expectancy. This just gives me more incentive to switch. I don't like the idea that this company gets to make my coffee selection for me. It's not just financial. People have different flavor preferences and their choices shouldn't be dictated by the brewer manufacturer. I think it's a dumb plan and they are going to lose a lot of customers, including me.

  • Report this Comment On October 09, 2014, at 8:52 AM, chap009 wrote:

    Once, in the world of copy machines, there was only Xerox. Once, in the world of k-cup machines, there was only Keurig. Let's hope this greedy move backfires and inspires someone to come up with something better, and less-polluting, than k-cups. As an ex-VTer, my affection for GMCR has just dissolved. I will not be buying the new 2.0 machine.

  • Report this Comment On August 07, 2015, at 10:56 PM, JOHNPCHEROKEE3 wrote:

    That has got to be the most childlike argument I have seen!

    Everyone should make their own machines for their own pods? Also everyone needs to stop being lawsuit happy and just work.

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Daniel B. Kline

Daniel B. Kline is an accomplished writer and editor who has worked for the Microsoft's Finance app and The Boston Globe, where he wrote for the paper and ran the business desk. His latest book "Worst Ideas Ever" (Skyhorse) can be purchased at bookstores everywhere.

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