IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

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SCENTSATIONAL

TECHNOLOGIES, LLC,

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Plaintiff, Civil Action No.: -vPEPSICO, INC., PEPSI-COLA TECHNICAL OPERATIONS, INC., THE QUAKER OATS COrvlPANY, STOKELY-VAN CAMP, INC., and TROPICANA PRODUCTS, INC., Defendants.

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COMPLAINT Plaintiff, ScentSational Technologies, LLC ("Plaintiff" or "ScentSational"), by and through its undersigned counsel, as and for its Complaint against Defendants, PepsiCo, Inc., Pepsi-Cola Technical Operations, Inc., The Quaker Oats Company, Stokely-Van Camp, Inc., and Tropicana Products, Inc. (collectively, "Defendants" or "PepsiCo"), hereby alleges as follows: NATURE OF THE CASE 1. This action for (i) misappropriation of trade secrets; (ii) breach of contract;

(iii) unfair competition; (iv) unjust enrichment; (v) the imposition of constructive trusts upon certain patent applications and an issued patent; and (vi) the correction of inventorship of an issued patent, is based upon Defendants' misappropriation and use of Plaintiff's trade secrets and other confidential information to pursue and obtain patents for Defendants' benefit, thereby violating Defendants' duties of trust and confidence arising from the parties' nearly decade-long confidential relationship, as well as in derogation of Defendants' contractual obligations arising from the parties' written confidentiality agreements.

{ 1 0176/608923-000/01107581.1}

THE PARTIES 2. Plaintiff ScentSational is a limited liability company organized and existing under

the laws of the State of Pennsylvania, with its principal place of business in Jenkintown, Pennsylvania. All of Scentsational's members are citizens of the State of Pennsylvania. 3. Defendant PepsiCo, Inc. ("PepsiCo") is a North Carolina corporation with its

headquarters in Purchase, New York. 4. Defendant Pepsi-Cola Technical Operations, Inc. ("PepsiCo Tech") is a Delaware

corporation and a subsidiary of PepsiCo, with its headquarters in Purchase, New York. 5. Defendant The Quaker Oats Company ("Quaker") is a New Jersey corporation

and a subsidiary of PepsiCo, with its headquarters in Chicago, Illinois. 6. Defendant Stokely-Van Camp, Inc. ("Stokely") is an Indiana corporation and a

subsidiary of PepsiCo, with its headquarters in Chicago, Illinois. 7. Defendant Tropicana Products, Inc. ("Tropicana") is a Delaware corporation and

a subsidiary of PepsiCo, with its headquarters in Bradenton, Florida. JI.J1n~nICTION AND VENUE 8. This Court has subject matter jurisdiction over the federal patent claim alleged in

this action pursuant to 28 U.S.C. 1331 and 1338(a). 9. This Court has subject matter jurisdiction over the non-federal claims alleged in

this action, pursuant to 28 U.S.C. 1367(a), because such claims are so related to the federal claim alleged in this action that they form part of the same case or controversy. 10. In the alternative, this Court has subject matter jurisdiction over the non-federal

claims alleged in this action, pursuant to 28 U.S.C. 1332(a), because complete diversity of

2
{10176/608923000/0110758 1.I}

citizenship exists between the parties and the amount in controversy exceeds $75,000, exclusive of interest and costs. 11. This Court has personal jurisdiction over PepsiCo, pursuant to NY CPLR 301,

because PepsiCo conducts business within the State of New York on a regular, systematic, and continuous basis from its corporate headquarters in this judicial district. 12. This Court has personal jurisdiction over PepsiCo Tech, pursuant to NY CPLR

301, because PepsiCo Tech conducts business within the State of New York on a regular, systematic, and continuous basis from its corporate headquarters in this judicial district. 13. This Court has personal jurisdiction over Quaker, pursuant to NY CPLR 302(a),

because Quaker transacts and solicits business within the State of New York, including within this judicial district. 14. This Court has personal jurisdiction over Stokely, pursuant to NY CPLR 302(a),

because Stokely transacts and solicits business within the State of New York, including within this judicial district.
15.. This Court has personal jurisdiction over Tropicana, pursuant to NY CPLR

302(a), because Tropicana transacts and solicits business within the State of New York, including within this judicial district. 16. Venue is proper in this district, pursuant 28 U.S.C. 1391(b)(2), because the

collective wrongful acts of Defendants, as discussed, infra, occurred, in substantial part, in this judicial district. 17. In the alternative, venue is proper in this district, pursuant 28 U.S.C. 139l(b)(3),

because, as discussed, supra, Defendants are subject to personal jurisdiction in this judicial district.

{I 0176/608923-000/01107581.1}

18.

The assignment of this action to the White Plains Courthouse is proper, pursuant

to Rule 18(a)(i) of the Local Rules of the United States District Court for the Southern and Eastern Districts of New York, because (i) the causes of action asserted herein arose in whole or in major part in the State of New York, County of Westchester (i.e., a "Northern County") and

(ii) Defendants PepsiCo and PepsiCo Tech reside in Westchester County, as their corporate headquarters are located in Purchase, New York. FACTS COMMON TO ALL CLAIMS FOR RELIEF A. ScentSational's Business and Trade Secrets 19. In 1997, Steven M. Landau ("Landau"), an inventor and successful entrepreneur,

began extensive research and development to determine whether aromas could be applied to, or incorporated in, product packaging. Among other things, Landau wanted to determine whether it was possible to infuse a product's closure with aroma so that when a consumer drank from the closure, the release of aroma would cause the consumer to perceive the product as being sweeter and more flavorful than it actually was. 20. L11 1997, Landau Lllvented t.he concept of flavor modification using aroma

delivery systems including, but not limited to, manufacturing aromatic product packaging for food and beverages ("Landau's 1997 Invention"). 21. On or about August 6, 2002, Landau and Barry M. Edelstein ("Edelstein"), an

investor and successful entrepreneur, formed Plaintiff, ScentSational Technologies, LLC. ScentSational owns all right, title, and interest in and to Landau's inventions including, but not limited to, Landau's 1997 Invention. 22. Together, Landau and Edelstein, on behalf of ScentSational, invested extensive

time, research and development, skill, and labor to build upon Landau's 1997 Invention. Their

4
{I 0176/608923-000/01107581.1}

efforts resulted in ScentSational' s trade secret, proprietary technologies for the application, manufacture, and use of scented packaging to enhance a product's aroma and taste, thereby improving the consumer's experience. 23. ScentSational's trade secrets relevant to this action include, inter alia, proprietary

methods for using (i) sweet aromas to convey the experience of sweetness to the consumer; (ii) fresh smelling top notes to convey freshness to the consumer; (iii) specific aromatic compounds to offset bitter and other unappealing tastes that the consumer would otherwise experience; (iv) aromatic flavors to enhance the overall consumer experience prior to and during consumption; and (v) scent on a package to allow aroma sampling at the shelf to influence consumer preference and purchasing behavior. 24. The illustrations below depict two examples of the general methodology

underlying ScentSational' s trade secret, encapsulated technologies:

Eof;apsulat'ildFlavo~
& Fragrances iflre

released into

CompelAroma TEO
AI10wsbrand owners to protect product. integrity with tamper seals while allowing consumers to sample the arorna ofthe product, connecting the consumer with the
brand and driving

packaging contents and

headspace.

Aromatic Closure Made 'Nith EfY"..ap~t!.!ated Aroma Release technology

purchase decisions.

Encaps~I;(!~ed FI;:lvors l!t Fragrances release arpma's \IJtpthe ai~ .

Tamper Evident Seal Prevents aroma release

.:.:~~ ScenrSanooal ,".jJ.:' c '. ~ n ~ r. -s

T of ,*:i.

Aroma Rel~C'se From Closure Matches the aroma

of contents

;~\ScentSational .:.e__ , f G e LOCO' (' ~

tt 0<

25.

ScentSational's trade secrets are unknown, both within and outside the relevant

industry, and cannot be duplicated or acquired by third parties, unless disclosed by ScentSational pursuant to a written confidentiality agreement.

5
{I 0176/608923-00010110758 1.1}

26.

ScentSational's trade secrets are highly valuable to ScentSational. Indeed,

ScentSational is recognized as the industry leader with a proven track record of developing encapsulated aroma technologies for food and beverage packaging. 27. At all times relevant to the instant action, ScentSational has maintained extensive

safeguards to protect the secrecy of its trade secrets including, but not limited to, requiring thirdparties to execute detailed confidentiality agreements before disclosing its trade secrets. As such, ScentSational's trade secrets will only be disclosed in the instant action pursuant to a protective order executed by the parties and any agreed-upon third parties, and So Ordered by the Court. 28. The proprietary manufacturing processes, technologies, methodologies, consumer

studies, and other commercial knowhow underlying ScentSational's trade secret encapsulated aroma technologies for food and beverage packaging used to induce olfactory enhancement in persons purchasing or consuming liquids or solids from a package or receptacle (including, but not limited to, beverages), discussed in paragraphs 19-27, supra, will hereinafter be collectively referred to as "Scentxational's Trade Secret(s)." B. ScentSational's Relationship With PepisCo 29. Articles have been published in the press about ScentSational's unique approach

to enhancing the aroma and taste of foods and beverages with scented packaging (albeit without disclosing ScentSational's Trade Secrets or other confidential information). 30. These articles attracted the attention of consumer-packaged goods companies

("CPGs"). Indeed, following publication of the articles, ScentSational received a number of requests from CPGs to give presentations concerning the incorporation of ScentSational's Trade Secrets into certain CPGs' mass-produced goods. If a CPG showed interest, ScentSational and

6
{10176/608923000/01107581.1}

the CPG would sign a written confidentiality agreement prior to engaging in further discussions or development agreements. 31. One such CPG was PepsiCo. Unlike ScentSational, PepsiCo had achieved only

limited success, if any, harnessing the power of smell. Among other things, PepsiCo's method of aroma release using encapsulates applied under a product's cap caused manufacturing

challenges, along with unwanted premature release when the cap was applied. 32. Thus, beginning in or about 2001, PepsiCo turned to ScentSational to discuss, and incorporation of

what PepsiCo led ScentSational to believe, was the commercialization ScentSational's 33. Trade Secrets into PepsiCo's packaged products. For approximately

the next decade, PepsiCo and ScentSational

developed a

confidential relationship, wherein PepsrCo presented ScentSational with at least six separate and distinct projects that proposed commercializing and incorporating Scentsational's Trade Secrets

into Pepsico's consumer packaged beverages including, but not limited to, coffee and orange JUIce. 34. As proposed by PepsiCo, the projects required Scentfiational to disclose its Trade to PepsiCo and certain PepsiCo suppliers. Defendants PepsiCo Tech, Quaker, Thus,

Secrets and other confidential information PepsiCo and its subsidiaries, including

Stokely, and

Tropicana, entered into four written confidentiality agreements (the "CAs") with ScentSational (all of which were provided to ScentSational by PepsiCo) in order to obtain ScentSational's

Trade Secrets and other confidential information with a view towards incorporating them into the

aforementioned projects.

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i. 35.

The 2003 Confidentiality Agreement The first written confidentiality agreement was entered into on December 29,

2003, between "PEPSICO, INC., on behalf of Quaker, Stokely-Van Camp, Inc. and Tropicana Products, Inc., its affiliates and subsidiaries ('PEPSICO') and SCENTSATIONAL

TECHNOLOGIES, LLC ('COMPANY')" (the "'03 CA"). A true and correct copy of the '03 CA is attached hereto as Exhibit A. 36. Pursuant to its essential terms: PEPSICO and COMPANY desire to work together to develop prototypes for applications using COMPANY'S technology for flavor incorporation in plastic materials for release in head space (the 'Project'). Both PEPSICO and COMPANY have certain information which they consider to be confidential and proprietary regarding the subject matter of the Project and it will be necessary for each party to disclose its confidential information to the other during the course of the Project. Exhibit A at ~ 2. 37. Pursuant to its essential terms, "Confidential Information" under the '03 CA was

defined as "any and all information disclosed by one party to the other in connection with the Project, whether disclosed in writing, orally, visually or by samples [... ]." Id. at ~ 3. 38. Pursuant to its essential terms, the par ..... ties agreed under the '03 CA that "[t]he

recipient of Confidential Information agrees that ConfIdential Information disclosed to it hereunder shall be retained in confidence in the same manner used to protect its own confidentiality and trade secret rights and shall not be disclosed to others or used for purposes other than the Project." Id. at ~ 4. [emphasis added]. 39. Pursuant to its essential terms, the parties' obligations regarding Confidential

Information under the '03 CA "survive[d] termination of th[e] Agreement." Specifically, "the recipient's obligations of confIdentiality and non-use relating to product formulae, ingredients,

8
{I 0 176/608923-000/01107581.1}

trade secret or manufacturing know-how, will survive termination of this Agreement." Id. at ~ 6.

[emphasis added]. ii. 40. The 2004 Confidentiality Agreement The second written confidentiality agreement was entered into on December 8,

2004, between "PepsjCo, Inc. on behalf of itself and its subsidiaries and affiliates [... ] and ScentSational Technologies, LLC" (the "'04 CA"). A true and correct copy of the '04 CA is attached hereto as Exhibit B.
41.

The purpose of the '04 CA was for PepsiCo and ScentSational "to discuss matters

respecting and to share data, information and materials regarding certain development initiatives and/or business plans and objectives, including specifically (but not limited to) Frappuccino and related products." Exhibit B. 42. Under the '04 CA, each party agreed that it would "accept in strict confidence any

and all information disclosed or made available to it by the disclosing party, and w[ould] not disclose it to any third party or otherwise violate the terms hereof, directly or indirectly, without first obtaining the written consent of the disclosing pa..-ty [ ... J." Jd. at ~ 1. 43. The parties also agreed under the '04 CA that they would "disclose the

Information only to [their] employees on a need-to-know-basis who require the Information for the performance of their duties in connection with work or possible work together [.... ]." Id. at ~ 3(ii). 44. Pursuant to the '04 CA: Each receiving party acknowledges that the Information disclosed by a disclosing party is the confidential and proprietary information and property of the disclosing party, and that the receiving party does not have, and nothing herein shall be construed to imply, any claim, right, title, property or other interest or license of any kind or nature in the Information. Each receiving 9
{10176/608923-000/01107581.1 }

party shall hold and maintain the Information disclosed by the disclosing party hereunder in confidence and trust for the sole and exclusive benefit of the disclosing party, and shall not use the Information for its own benefit or for the benefit of any third party. Id. at ~ 5. [emphasis added]. 45. Pursuant to the '04 CA, "[t]he obligations undertaken under this Agreement shall

be effective retroactively to the date any Information was first disclosed, made available or provided by a disclosing party to the receiving party." Id. at ~ 7. iii. 46. The 2005 Confidentiality Agreement The third written confidentiality agreement was entered into on July 26, 2005,

between "Pepsi-Cola Technical Operations, Inc. (,PEPSI') and ScentSational Technologies, LLC [.... ] ('Company')" (the '''05 CA"). A true and correct copy of the '05 CA is attached hereto as Exhibit C. 47. The '05 CA indicated that that: PEPSI is in the business of developing, packaging for manufacture and marketing food products, including, without limitation, beverage, snack, cereal, grain and other food products. PEPSI and Company are interested in working together during the development of aroma releasing packaging components for the ready-to-drink coffee products ('the Project'). Exhibit C atp. L 48. Pursuant to the '05 CA: In order to have meaningful discussions, PEPSI and Company, at their respective sole discretion, may, from time to time, disclose to the other certain information that is considered confidential by the disclosing party. Both PEPSI and Company are willing to do so provided that the other observes certain requirements to assure that such confidential information is kept confidential and not used in any way, except as authorized herein. Id. 49. As defined in the '05 CA, ScentSational's "Confidential Information" was: [I]nformation and data relative to the research, development, production, packaging, control, sale and marketing of foods including, but not limited to, know-how, economic information, business and technical development plans, marketing strategy, data, technical information, know-how, process and 10
{l0176/608923000/01107581.1 }

product information, methods of manufacture, intangible assets, and derivative works made by the receiving party that are based on Confidential Information disclosed to it by the other [.... J. fd.

50.

Pursuant to the '05 CA, the parties "agree[dJ not to disclose either orally or in

writing to any third party or to use in any way except as expressly granted herein (i) any of the Confidential Information received from the other and (ii) any information developed by the receiving party that is based on Confidential Information received from the other [.... ]." ld. [emphasis added]. 51. According to the '05 CA, the parties agreed to "maintain the Confidential

Information disclosed to it by the other in a manner at least as equal to the degree of care it uses to protect its own Confidential Information, but in any event, not less than a reasonable degree of care." fd at p. 2. 52. Pursuant to the '05 CA, a
[P]arty receiving Confidential Information acknowledges that the Confidential Information is the confidential and proprietary information and property of the other and that the receiving party does not have any claim, right, title, property or other interest or license of any kind or nature in the Confidential Information. The receiving party shall hold and maintain the Confidential Information in strict confidence and in trust for the sole and exclusive benefit of the disclosing party. Id. [emphasis added].

53.

The '05 CA states that: "[e]ach party's obligations of confidentiality and non-use

for Confidential Information received hereunder [... ] relating to formula, ingredients, trade secrets or manufacturing know-how shall not expire unless it is subject to one or more of the above-recited exceptions." fd at p. 3. [emphasis added]. iv. 54. The 2010 Confidentiality Agreement The fourth written confidentiality agreement, "Agreement No. 2010-NDA-

03004," was entered into on February 22, 2010, between "PepsiCo, Inc. (,PEPSI') [... ] and

11
{101761608923-00010 1107581.1}

ScentSational Technologies, Inc. ('Company') (the '" 10 CA"). A true and correct copy of the '10 CA is attached hereto as Exhibit D. 55. As a result of the '10 CA, the parties agreed "that any disclosed Confidential

Information, as defined below, provided by the disclosing party, (as 'Owner'), to the receiving party (as 'Recipient'), provided for the limited purpose stated in the Confidential Information Transfer Record ('CITR'), as more fully described herein shall be treated in accordance with the following provisions." Exhibit D. 56. Pursuant to the ' 10 CA, the purpose of disclosing confidential information was: PEPSI and/or one or more of its affiliates (as defmed herein) and COMPANY are interested in discussing and potentially conducting research, pursuant to the Project as described in the CITR. In order to have meaningful discussions and carry out any agreed upon research, certain information related to the Project may be disclosed that is considered confidential. In consideration of the attendant opportunity for mutual benefit, the sufficiency of which is acknowledged and agreed, The Parties agree that PEPSI and/or its Affiliates and PEPSI CITR Entity (as defined in the CITR) ('PEPSI GROUP') and COMPANY~ as the circumstances and terms of the CITR dictate, may disclose and receive Confidential Information (as defined hereunder) related to the Project, provided that the recipient observes the requirements set forth herein to ensure that such Confidential Information is kept confidential and not used in any way, except as expressly authorized herein." Id. at ~ 1. 57. The '10 CA stated that, under a "Two-Way CITR [... ] 'Confidential Information,'

as used in this Agreement and any relevant CITR means any and all information disclosed, obtained, developed, and/or information that the Recipient is exposed to under the Project whether disclosed in writing, orally, visually or by samples. Id. at ~ 2(a). 58. Pepsi agreed under the' 10 CA that, in the event of a Two-Way CITR, "it [would]

use Confidential Information solely in connection with the Project." Id. at ~ 3. [emphasis added]. The parties also agreed that nothing contained in [the '10 CAl gives one Party the right

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(I0176/608923-000/011075811

to file any patent applications

for or otherwise

disclose or use any intellectual property

containing the Confidential Information of the other Party. Id. [emphasis added].

59.

Furthermore, under the '10 CA, the parties agreed that the "Owner hereby grants

to the Recipient the right to use the Owner's Confidential Information for the sole purpose of the Project and not for any other purpose whatsoever." Id. [emphasis added]. 60. Pursuant to the '10 CA, the parties' obligations with respect to (i) Confidential

Information disclosed thereunder was "effective retroactively from the date Confidential Information was first disclosed, made available or shared by the Owner or anyone acting on its behalf [.... J" and (ii) "each Party's obligations of confidentiality and non-use relating to product formulae, ingredients, trade secrets or manufacturing know-how [did] not expire unless subject to one or more of the exceptions recited below." Id. at ~ 4. [emphasis added]. 61. Under the ' 10 CA, "Affiliate [... ] with respect to PEPSI" is defined as "any

company or other legal entity [.... J ii) controlled by PEPSI and/or iii) is under control of the same entity that controls PEPSI [.... ]." Id. at ~ 8. 62. On February 22, 2010, PepsiCo and Scentsational executed a Two-Way CITR,

pursuant to which the parties agreed that: Confidential Information being disciosed under this CITR is to be used solely for the purpose of sharing openly the details behind aroma-based technologies for possible use and application in and/or relating to the LRB portfolio, Protein containing beverages, Carbonated beverages, Water/enhanced water, Sports drinks, Energy drinks, Dairy based drinks, Juices/juices-containing beverages, Coffee products, and Tea products (the 'Project'). Id. at p. 6. 63. Pursuant to the Two-Way CITR, the parties agreed that the "Recipient of any

Confidential Information under this CrTR may not use that Confidential Information for any purpose other than the Project." ld. [emphasis added].

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{I 0176/608923-000/0110758 I.I}

64.

The

Two-Way

CITR

explicitly

"govem[ed]

disclosures

of

Confidential

Information commencing on the CITR Effective Date and continuing thereafter for a period of twenty-four (24) months." ld.

C. Disclosures by ScentSational to PepsiCo During the Parties' Confidential Relationship 65. During their relationship, ScentSational confidentially disclosed numerous Trade

Secrets and other confidential information to PepsiCo and PepsiCo's Center of Excellence (the "COE"). 66. At all times relevant to this action, the COE, upon information and belief, was a

senior, centralized group within PepsiCo that disseminated information and technology to all of PepsiCo's brands including, but not limited to, Defendants PepsiCo Tech, Quaker, Stokely, and Tropicana. 67. Upon information and belief, the COE routinely disseminated ScentSational's

Trade Secrets throughout PepsiCo's brands and subsidiaries including, but not limited to, Defendants, PepsiCo Tech, Quaker, Stokely, and Tropicana. 68. During their relationship, the parties discussed ScentSational's confidential

method of flavor modification using aroma delivery systems including, but not limited to, placing an aroma on the outside of product packaging. 69. PepsiCo's prior unsuccessful attempts at flavor modification in general caused it

to doubt the feasibility of ScentSational's flavor modification method. Thus, PepsiCo asked ScentSational to substantiate its flavor modification method. 70. In reliance on the trust stemming from the parties' confidential relationship, as

well as PepsiCo's strict non-disclosure obligations under the CAs, ScentSational disclosed to PepsiCo the results of confidential consumer studies conducted by a major United States 14
{101761608923-000/01107581.1 }

university proving, inter alia, that packaging incorporating ScentSational's flavor modification method and other confidential information delivered an improved flavor experience, including the ability to impact the perception of sweetness, and increased product value (the "Consumer Study Trade Secret"). 71.
In addition to its flavor modification method and Consumer Study Trade Secrets,

ScentSational confidentially disclosed to PepsiCo its Trade Secrets concerning packaged orange juice. ScentSational proposed that PepsiCo incorporate ScentSational's Trade Secrets and other confidential information concerning various methods of applying specially formulated aroma to the bottle closure, fitment, or packaging to its Tropicana products to give consumers the perception that Tropicana juice smelled and tasted more like fresh squeezed juice (the "Orange Juice Trade Secrets"). 72. At the request of PepsiCo, ScentSational created and provided product samples

(including, but not limited to, bottle closures and fitments) to PepsiCo that incorporated ScentSational's Orange Juice Trade Secrets. 73. During me parties' confidential relationship, ScentSational also disclosed its

Trade Secret concerning proprietary methodologies in the manufacture, curing, and use of scented liners and coating materials in food and beverage packaging (the "Scented Liner Trade Secret"). 74. PepsiCo believed ScentSational's Scented Liner Trade Secret was commercially

viable. For example, PepsiCo requested that ScentSational submit to PepsiCo a development timeline that would allow the parties to commercialize PepsiCo products incorporating the Scented Liner Trade Secret by January 1,2010.

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{10176/608923-000/01107581.1}

75. numerous

Moreover, requests

throughout

the parties'

confidential

relationship, concerning

PepsiCo

made of

for product

samples

and presentations

the utilization

ScentSational's

Trade Secrets and other confidential information.

In response, ScentSational

representatives often traveled, at their own expense, to PepsiCo's facilities in Illinois, Florida, Texas, and New York. 76. For example, as early as 2001, PepsiCo requested flavored beverage closures

from ScentSational that incorporated ScentSational' s Trade Secret methods of enhancing the consumer experience by modifying the aroma on the outside of packaged beverages using scented encapsulates. 77. As recent as March 22, 2010, ScentSational received an urgent request from

PepsiCo for more of the aforementioned product samples incorporating ScentSational's Trade Secrets to present to PepsiCo's then-Chairperson and Chief Executive Officer (the "March 22, 2010 Request"). 78. On March 25, 2010, ScentSational met with members of PepsiCo's "Innovation
1.."'1

Team" for a presentation at PepsiCo's corporate headquarters "March 25, 2010 Presentation"). 79.

Valhalla, New York (the

During the March 25, 2010 Presentation, ScentSational provided PepsiCo's

Innovation Team with product samples implementing ScentSational's Trade Secrets and confidentially disclosed Trade Secrets concerning, inter alia: a. proprietary methods concerning the application and use of both oil-based (hydrophobic) and water-based (hydrophilic) flavors in a polymeric base with food and beverage packaging (the "Oil and Water Polymeric Base Trade Secret"); b. proprietary methods of using different polymer blends including, but not limited to, waxes, to food and beverage packaging to enhance the aroma of taste of products (the "Polymer Blend Trade Secret"); and

16
{10176/608923-000/0 1107581.1}

c. details of methods of using aroma delivery systems comprised of entrapping aromas in a polymer matrix used in food and beverage packaging to enhance the aroma and/or taste of the product (the "Polymer Entrapped Flavor Trade Secret"). 80. ScentSational's confidential disclosures of its Trade Secrets to PepsiCo and, upon

information and belief, the COE's confidential dissemination of said Trade Secrets throughout PepsiCo's brands and subsidiaries, resulted in numerous proposed development agreements to incorporate ScentSational's Trade Secrets into various PepsiCo products. Examples of such PepsiCo products include, but are not limited to, Tropicana orange juice, Quaker Oats oatmeal, Frito-Lay dips, Propel water, and Starbucks Frappuccino drinks. 81. The ScentSational Trade Secrets included in the proposed development

agreements included, inter alia, the Consumer Study Trade Secret and Orange Juice Trade Secrets. 82. However, at the end of the parties' nearly-decade long confidential relationship,

PepsiCo informed ScentSational that PepsiCo was not interested in scent-enhanced packaging. D. PepsiCo Used ScentSational's Trade Secrets to Pursue Patents for PepsiCo's Sole Commercial Benefit 83. At no time during the course of their relationship did anyone working for PepsiCo

or its subsidiaries, including Defendants PepsiCo Tech, Quaker, Stokely, and Tropicana, advise ScentSational that ScentSational's Trade Secrets or other confidential information confidentially disclosed by ScentSational were the property of PepsiCo or its subsidiaries, or that they had ever invented such concepts independently. Indeed, as set forth in the CAs, ScentSational's Trade Secrets and other confidential information remained ScentSational's property, and PepsiCo never challenged title to same.

17
{IOI76/608923-000/0110758U}

84.

Nonetheless, PepsiCo, in violation of its duties under the parties' confidential and ScentSational's Trade Secrets by using said Trade

contractual relationships, misappropriated

Secrets to file and prosecute at least three United States patent applications for PepsiCo's sole commercial benefit. i.

PepsiCo Misappropriated and Used ScentSational's Trade Secrets in Connection with U.S. Patent Application No. 12/548,549 On August 27, 2009, (i.e., during the parties' confidential relationship), PepsiCo

85.

filed U.S. Patent Application No. 12/548,549 (the "'549 Application"), entitled "Modifying Flavor Experience via Aroma Delivery." Margaret Havekotte of Fairfield, Connecticut, and

Marco Covarrubias, of White Plains, New York, both of whom were employees of PepsiCo at the time, were identified as the inventors, and PepsiCo was identified as the assignee, of the '549 Application. A true and correct copy of the '549 Application is attached hereto as Exhibit E. 86. The '549 Application was published on March 4, 2010 (i.e., during the parties'

confidential relationship) as U.S. Patent Application Publication No. US 2010-0055245 Al (the '''245 Publication"), a mere 18 days before PepsiCo's urgent March 22, 2010 Request for product samples from ScentSational that incorporated the very encapsulated aroma technologies claimed by PepsiCo in the '245 Publication, and weeks after ScentSational and PepsiCo executed the '10 CA. A true and correct copy of the '245 Publication is attached hereto as Exhibit F. 87. The '245 Publication claimed a method for modifying flavor experience via

aroma delivery, including applying at least one aroma to a comestible's packaging. 88. In paragraph 0023 of the '245 Publication, PepsiCo claimed "a new aroma-

focused packaging/product innovation for orange juice was developed to enhance the overall product experience. It was discovered that the aroma experience was enhanced which

18
{10176/60&923-000/0110758Ll }

compensated for the fresh orange juice characteristics lost during processing. In addition taste perception was enhanced through aroma-taste interaction." 89. In paragraphs 0024-0026 of the '245 Publication, PepsiCo claimed that

"Consumer testing was performed as follows: [e]ach respondent was served one control (current shelf-stable orange juice product) and one test sample. Test samples consisted of chilled shelfstable juice [... ] [e]ncapsulated aromas were pre-applied to the cap prior to testing [.... ]." 90. In paragraph 0028 of the '245 Publication, PepsiCo claimed "it was found that the

test product was significantly preferred compared to the control [... ] the test product was judged by consumers to be significantly healthier, more natural, hand-squeezed, higher quality and energizing compared to the control product." 91. The foregoing paragraphs demonstrate that, rather than use ScentSational's Trade

Secrets (including, but not limited to, the Consumer Study Trade Secret and Orange Juice Trade Secrets) to pursue the projects set forth in the CAs, PepsiCo misappropriated and used (and continues to misappropriate and use) ScentSational's Trade Secrets to prepare and conduct PepsiCo's own consumer studies concerning orange juice and flavor modification via aroma delivery. 92. PepsiCo, in turn, used the results of its own consumer studies (designed and

conducted using ScentSational's Trade Secrets) to support its claimed method of flavor modification via aroma delivery in the' 549 Application and '245 Publication. 93. The chart below (referencing the '245 Publication) includes some of

ScentSational's Trade Secrets that PepsiCo misappropriated and used in violation of its duties under the parties' confidential and contractual relationships to (i) conduct its own consumer

19
{10176/608923-000/01107581.1 }

testing in furtherance of, inter alia, the '549 Application and (ii) to file and prosecute the '549 Application. ScentSational Trade Secret The Consumer Study Trade Secret The Orange Juice Trade Secrets The Polymer Entrapped Flavor Trade Secret The method of applying a sweet aroma on food and beverage product packaging to drive an enhanced perception of sweetness of taste to consumers during consumption The method of applying aroma to food and beverage packaging to mitigate the bitter taste of the package's contents the method of applying aroma only on the outside of food or beverage product packaging to enhance the consumer experience while not impacting the chemical composition of the product Details of methodologies for prolonging fresh notes from the products by identifying fresh notes and keeping them stable by applying them to packaging and keeping them fresher from manufacture to end of shelf life Methods and knowhow related to the use of barrier and nonbarrier secondary protective coatings on the surface of flavor scented polymer matrix blends and flavored '245 Publication Claim(s) # 2,6, 11 3, 12, 17 1, 3-12, 14-20 2,6, 11 '245 Publication Description(s) # 0004, 0005, 0008, 0013, 0014, 0028 0011, 0014, 0015, 0016, 0019, 0023,0025,0026 0021,0026 0004, 0005, 0008, 0013, 0014, 0028

0004,0008,0015

4, 13,21

0007,0018,0021

0004, 0008, 0014, 0016, 0023, 0028

0002

20
{I 0 176/608923-000/0 1107581.11

microencapsulates used in food and beverage packaging Details of methods and knowhow related to extending product shelf life by applying flavors to food and beverage packaging Method of application and dosing during the flavor application to food and beverage packaging Methods, knowhow and approach for developing aromas to work in concert with the bad smell of a product, instead of attempting to mask the bad smell when applying to food and beverage packaging Methodologies, strategic placement and use of aromas to minimize costs with, maximum effect when, applying aromas to food and beverage packaging Methods of containing crosscontamination in packaging manufacturing plants when applying aromas to food and beverage packaging Methodologies in the manufacturing, curing and use of scented liners and coating materials in food and beverage packaging, along with a secondary coating, to maintain the longevity of the aroma The method of using a secondary covering to protect aroma applied to food and beverage packaging Proprietary method of applying aroma to coffee packaging to enhance the aroma and taste of coffee

0025-0026

1,4,10,12

0001, 0010, 0024-0028

0017-0019,

0021,

1-12, 14-20

0004, 0005, 0008, 0013, 0016, 0017,0026

0005,0013

0021,0026

0018

1,3-12, 14-20

0019-0023,0025-0026

9, 12, 17, 19,23

0011,0012,0019,0021

21
{ 10176/608923-000/01107581.1}

Proprietary formulation methods for flavors applied to food and beverage packaging to enhance the aroma and taste of product Methodologies and knowhow in driving improved consumer experience by applying aroma to food and beverage J:)_ackaging_ Proprietary method of delivering certain ingredients and experience without having to re-label the product packaging Method of application and dosing during the flavor application to food and beverage packaging

2, 3, 6, 7, 8, 11, 12, 17

0005,0011,0013,0014,0015, 0016

1, 10

0001,0007,0009,0016,0023, 0028

0003

1,4,10,20

0001,0010,0017,0018,0019, 0021, 0024-0029

94.

In violation of its duties arising out of the parties' confidential and contractual

relationships, PepsiCo continues to misappropriate and use ScentSational's Trade Secrets and other confidential information to prosecute the '549 Application. For example, on June 2,2011, PepsiCo filed its Information Disclosure Statement with the United States Patent and Trademark Office (the "USPTO") and, on January 21, 2013, PepsiCo filed a Request for Continued Examination with the USPTO. 95. While certain ScentSational Trade Secrets are embodied within the '549

Application, and the file history thereof (including the '245 Publication), the '549 Application does not expressly disclose ScentSational's Trade Secrets. Indeed, upon information and belief, PepsiCo chose not to disclose ScentSational's Trade Secrets in order to maintain their secrecy and to prevent PepsiCo's competitors from having access to such valuable information.

22
{10176/608923-000/01107581.1 }

ii.

PepsiCo Obtained the '637 Patent By Misappropriating and Using ScentSational's Trade Secrets Upon information and belief, an individual named Peter Given ("Given") was

96.

present during meetings and presentations between ScentSational and Defendants in which ScentSational's Trade Secrets and other confidential information were disclosed. 97. Specifically, Peter Given was among those known to be present during the March

25, 2010 Presentation. As discussed, supra, ScentSational's Oil and Water Polymeric Base, Polymer Blend, and Polymer Entrapped Flavor Trade Secrets were among those ScentSational Trade Secrets which ScentSational confidentially disclosed to PepsiCo during the March 25, 2010 Presentation. 98. On July 7, 2010, Given and one Naijie Zhang ("Zhang") filed U.S. Patent Serial

Number 12/831,683 entitled "Releasable Entrapment of Aroma Using a Polymeric Matrix" (the '''683 Application"). PepsiCo was identified as the assignee of the '683 Application. A true and correct copy of the '683 Application is attached hereto as Exhibit G. 99. In the '683 Application, PepsiCo claimed to invent "an aroma delivery system

[that] [... ] related to a water-resistant aroma delivery system comprising polar, non-polar, and volatile compounds." Exhibit G at ~ 01. 100. In Claim 3 of the '683 Application, PepsiCo claimed the "aroma delivery system

of claim 1, wherein the aroma compound is selected from the group consisting of a volatile compound, a polar compound, a hydrophilic compounds, and blends thereof." [emphasis added]. 101.
In Claim 17 of the '683 Application, PepsiCo claimed the "container of claim 13,

wherein the polymer matrix is selected from the group consisting of a natural wax, a natural biopolymer, a natural polymer, a synthetic polymer, and blends thereof." [emphasis added].

23
{10176/608923000/01107581.1}

102. On January 12, 2012, the '683 Application was published as U.S. Patent
Application Publication No. 2012-0006909 Al ("the "'909 PUblication"). A true and correct copy of the '909 Publication is attached hereto as Exhibit H.

103. The chart below (referencing the '909 Publication) includes some of
ScentSational's Trade Secrets (including those confidentially disclosed during the March 25,

2010 Presentation) that PepsiCo misappropriated and used in violation of its duties under the
parties' confidential and contractual relationships to file and prosecute the '683 Application: ScentSational Trade Secret Orange Juice Trade Secrets Oil and Water Polymeric Base Trade Secret Polymer Blend Trade Secret Polymer Entrapped Flavor Trade Secret

'909 Publication Claim(s) # 1-20

3

'909 Publication Description # 0028 0044 .0035,0039,0042 0001,0007,0016,0020,0022, 0024-0025,0027,0032,0034, 0041;0047,0057 0001,0006,0016,0017,0020, 0023-0030, 0032-0035,.00370039,0041,0042,0046,0047, 0049,0055,0057,0058 0001,0006,0016,0017,0020, 0023-0030,0032-0035,00370039,0041,0042,0046,0047, 0049,0055,0057,0058

16-20 1,13

The method of applying aroma 7,11 to food and beverage packaging to mitigate bitter taste of contents of package The method of applying aroma 1-20 only on the outside of food or beverage product packaging to enhance consumer experience while not impacting the chemical composition of the product The method of applying 16-20 different flavored polymer blends, including waxes to food and beverage packaging to enhance the aroma and taste of product Methods of containing cross contamination in packaging manufacturing plants when applying aromas to food and

0035,0039,0042

0014-0015,0025-0026,0041

24
{ 10176/608923 -000/0 1107581.1}

beverage packaging Details of methodologies for

0002,0025

prolonging fresh notes from the products, by identifying fresh notes and keeping them stable by applying them to packaging and keeping them fresher from manufacture to end of shelf life Details of methods and knowhow related to extending product shelf life by applying flavors to food and beverage packaging Methods and knowhow related 1,5-12, 13, 14, 17- 20 to the use of barrier and nonbarrier secondary protective coatings on the surface of flavor scented polymer matrix blends and flavored microencapsulates used in food and beverage packaging Methods, knowhow and approach for developing aroma's to work in concert with a bad smell of a product to correct it, instead of attempting to mask the unwanted aroma, when applying to food and beverage packaging The method of applying aroma to beverage packaging in order to deliver improved aroma and lor taste experience when the orifice in the container lid is small and otherwise limiting the aroma release of the product Methodologies and knowhow in driving improved consumer experience by applying aroma to food and beverage packaging The method of using a 1,9-12, 14, 19,20

0023

0016,0020-0022,0026,00310043,0045-0048,0057,

0025

0009

0025

0006,0016,0017,0020,0038,

25
{I0176/608923-000101107581.11

secondary covering to protect

0039,0040, 1-20 0001,0006,0016,0017,0020, 0023-0030,0032-0035,00370039,0041,0042,0046,0047, 0049,0055,0057,0058 0016,0020,0024,0025,0027, 0032,0034,0041

aroma applied to food and beverage packaging Proprietary method of applying aroma to coffee packaging to enhance the aroma and taste of coffee Proprietary method, use, and placement of encapsulated aromatic flavors to keep them stable and protected in applying them to food and beverage packaging prior to consumption

1,13

104. On July 2, 2013, the '683 Application issued as U.S. Patent No. 8,474,637,(the "'637 Patent").
Messrs. Given and Zhang are identified as the inventors, and PepsiCo is

identified as the Assignee of, the '637 Patent. A true and correct copy of the '637 Patent, as issued, is attached hereto as Exhibit I.

105. In Claim 1 of the '637 Patent, PepsiCo claimed 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 [... ]." [emphasis added].

106. In Claim 2 of the '637 Patent, PepsiCo claimed the "container of claim 1, wherein
the aroma compound is selected from the group consisting of a volatile compound, a polar compound, a hydrophilic compound, and blends thereof." [emphasis added].

107. In Claims 3- 5 of the '637 Patent, PepsiCo claimed:

3. The container of claim 1, wherein the secondary covering film is selected from the group consisting of a polysaccharide, a synthetic polymer, a natural wax, a natural biopolymer, a natural film former, and blends thereof. 4. The container of claim 1, wherein the polymer matrix is selected from the

26
P0176/608923-000/0110758Ll }

group consisting of a natural wax, a natural biopolymer, a natural polymer, and blends thereof. 5. The container of claim 4, wherein the polymer matrix is a natural wax. [emphasis added]. 108. '637 Patent. 109. While certain ScentSational Trade Secrets are embodied within the '637 Patent, Landau, not Given or Zhang, is the true inventor of the invention(s) claimed in the

and file history thereof (including the '683 Application and '909 Publication), the '637 Patent does not expressly disclose ScentSational's Trade Secrets. Indeed, upon information and belief, Trade Secrets. in order to maintain their secrecy

PepsiCo chose not to disclose ScentSational's

and to prevent PepsiCo's competitors from having access to such valuable information.

iii.

PepsiCo Misappropriated and Used ScentSational's Connection with the '834 Application

Trade

Secrets in

110.

On September 2, 2011, Messrs. Given and Zhang filed another patent application,

namely, U.S. Patent Application No. 13/223,834, entitled "Releasably Encapsulated Aroma" (the "'834 Application"). PepsiCo is identified as the assignee in the '834 Application. A true and

correct copy of the '834 Application is attached hereto as Exhibit J. 111. On March 7, 2013, the '834 Application was published, namely, U.S. Patent A true and correct copy

Application Publication No. 2013-0056551 AI (the "'551 Publication"). of the '551 Publication is attached hereto as Exhibit K. 112. ScentSational's The chart below (referencing that PepsiCo the '551

Publication)

includes

some

of

Trade

Secrets

misappropriated

and used (including

those

confidentially disclosed during the March 25, 2010 Presentation) in violation of its duties under the parties' confidential and contractual relationships to file and prosecute the '834 Application:

27
{101761608923-00010110758 Ll}

ScentSational Trade Secret

'551 Publication Claim(s) #

'551 Publication Description # 0025,0029,0030

Oil and Water Polymeric Base Trade Secret Polymer Blend Trade Secret Orange Juice Trade Secret Scented Liner Trade Secret Polymer Entrapped Flavor Trade Secret The method of applying a sweet aroma on food and beverage product packaging, to drive an enhanced perception of sweetness of taste to consumers during consumption Details of the method, use, and placement of scented encapsulated coatings on the outside of food and beverage packaging to drive consumer expenence The discovery through testing that different Let Down Ratio's (LDRs) should be used depending on the aromatics of the flavor and product itself when applying them to food and beverage packaging Proprietary method of applying aroma to coffee packaging to enhance the aroma and taste of coffee Methods and knowhow related to the use of barrier and nonbarrier secondary protective coatings on the surface of flavor scented polymer matrix blends and flavored microencapsulates used in food and beverage_Q_ackaging The method of applying different flavored polymer blends, including waxes to

6, 16 1,6,9, 13-17 1,8,9 6,11

0007,0027,0043 0021 0006,0007,0012,0014,0015, 0022,0026-0030,0042-0044 0018,0031,0042-0043 0007,0027

1,8,9

0018,0031,0042.0043

19

0002,0017,0019,0021

1,6,7, 9, 13-16

0026-0030,0042-0044

6, 16

0007,0027,0043

28
{101761608923-000101107581.1 }

food and beverage packaging to enhance the aroma and taste of product Details of methodologies for

0002,0019

prolonging fresh notes from the products, by identifying fresh notes and keeping them stable by applying them to packaging and keeping them fresher from manufacture to end of shelf life Methodologies and knowhow in driving improved consumer experience by applying aroma to food and beverage packaging Details of methods and knowhow related to extending product shelf life by applying flavors to food and beverage packaging Methods of containing cross contamination in packaging manufacturing plants when applying aromas to food and beverage packaging Methods, knowhow and approach for developing aromas to work in concert with a bad smell of a product to correct it, instead of attempting to mask the unwanted aroma, when applying to food and beverage packaging The method of applying aroma to beverage packaging in order to deliver improved aroma and lor taste experience when the orifice in the container lid is small and otherwise limiting the aroma release of the product The method of using a secondary covering to protect

0001,0004,0018-0019

0017

0005-0008,0012,0014,0015, 0023,0026,0028,0033,0044

0019

0003-0004

1,6,9, 13-16

0012,0014,0015,0022,00260030, 0042-0044 29

{lOI76f608923-000fOl10758Ll }

aroma applied to food and beverage packaging Proprietary method, use, and placement of encapsulated aromatic flavors to keep them stable and protected in applying them to food and beverage packaging prior to consumption

1, 8,9

0007,0012,0018,0031,0042, 0043

113.

While certain ScentSational Trade Secrets are embodied within the '834

Application, and the file history thereof (including the '551 Publication), the '834 Application does not expressly disclose ScentSational's Trade Secrets. Indeed, upon information and belief, PepsiCo chose not to disclose ScentSational's Trade Secrets in order to maintain their secrecy and to prevent PepsiCo's competitors from having access to such valuable information. E. ScentSational's Relationship With Coca-Cola 114. None of the CAs prohibited ScentSational from offering its technologies to other

companies, including to PepsiCo's direct competitors. In fact, at all relevant times, PepsiCo was aware that ScentSational was cultivating business relationships with other major CPGs, including some that competed directly with PepsiCo. 115. As ScentSational's nearly decade-long relationship with PepsiCo was nearing its

end, ScentSational' s discussions with Coca-Cola concerning the use of, inter alia, ScentSational's Orange Juice Trade Secrets and confidential information with Coca-Cola-owned packaged orange beverages, accelerated. 116. Coca-Cola believed that ScentSational's Trade Secrets were commercially viable.

Accordingly, Coca-Cola entered into an exclusive agreement with ScentSational, wherein ScentSational was to develop scented packaging technologies for Coca-Cola-owned packaged

30
{10176/608923-000101107581.1 }

orange beverages using, inter alia, ScentSational's Orange Juice Trade Secrets (the "Coca-Cola

Project"). 117. In addition to the Coca-Cola Project, ScentSational was actively involved with

Coca-Cola on a project concerning the incorporation of ScentSational's Trade Secrets into the packaging of one of Coca-Cola's global, carbonated soft drinks (the "CSD Project"). 118. The Coca-Cola and CSD Projects were extremely important to ScentSational.

Indeed, based upon the pre-negotiated, per unit pricing and projected volumes provided to ScentSational by Coca-Cola, the Coca-Cola Project would have resulted in an annual profit for ScentSational of approximately of $18 million, with expectations by both Coca-Cola and ScentSational for future annual revenues to meet or exceed this amount, The CSD Project would have resulted in an annual profit for ScentSational of approximately $3 million. 119. Due to the exclusive and lucrative nature of its opportunities with Coca-Cola,

ScentSational focused the majority of its time and resources in late 2010 and 2011 on successfully completing the Coca-Cola and CSD Projects. 120. With respect to the Coca-Cola Project, focus group testing by Coca-Cola revealed

that a significant percentage of respondents preferred its orange juice beverage incorporating ScentSational's Trade Secrets and confidential information over the identical product without them. Indeed, according to Coca-Cola, the focus group testing results were extraordinarily high and uncommon for an established brand. Accordingly, the Coca-Cola Project was one of CocaCola's top global juice-packaging initiatives for 2011 and 2012. 121. Because of the Coca-Cola Project's initial success, ScentSational and Coca-Cola

began working to manufacture product samples to be presented to the Board of Directors of Coca-Cola at its January 22, 2012 meeting. 31
{10176/608923000/011 07581.1}

122.

At the same time, ScentSational was developing and delivering product samples In anticipation of commercializing the CSD Project, Coca-

in furtherance of the CSD Project.

Cola began designing product labels with images depicting the release of aromatic flavors. F. ScentSational's Damages Caused by PepsiCo's Wrongful Acts 123. On October 28,2011, while Coca-Cola and ScentSational were accelerating Phase

II of the Coca-Cola Project (which readied the technology for commercialization), an attorney in the office of the General Counsel at Coca-Cola discovered the file history for PepsiCo's '549 Application, and immediately suspended the Coca-Cola Project. 124. Due to PepsiCo's claimed ownership to the method of "applying an aroma to

packaging" in the file history of '549 Application, and specific references to the use of scented packaging on orange juice, including the consumer studies, Coca-Cola believed the '549 Application (and its file history) presented a risk inconsistent with Coca-Cola's intellectual property policies. 125. Thus, on November 16, 2011, Coca-Cola notified ScentSational that, because of

the '549 Appiication and its file history, Coca-Cola would not move forward wit..hScenrSational on the Coca-Cola Project. 126. history. 127. ScentSational also stood to benefit from other projects and future opportunities The CSD Project was also cancelled because of the '549 Application and its file

with Coca-Cola, the world's largest beverage company with an excess of 500 packaged brands. 128. As a result of the '549 and '834 Applications, and the '637 Patent, as well as the

file histories thereof, ScentSational has lost business opportunities and credibility with Coca-

32
{10176/608923000/01107581.1}

Cola and other CPGs, as well as other customers due to the mistaken belief that PepsiCo, and not ScentSational, owns the technologies claimed therein. 129. ScentSational is aware of at least one instance of actual confusion wherein a

consumer contacted ScentSational expressing the mistaken belief that PepsiCo, and not ScentSational, owned the technologies claimed in the '549 and '834 Applications, and the '637 Patent, as well as the file histories thereof. CAUSES OF ACTION

COUNT I
Misappropriation of Trade Secrets (Against All Defendants) 130. Plaintiff repeats and realleges paragraphs 1 through 129 of the Complaint as if

fully set forth herein. 131.

In reliance on the trust and confidence stemming from the parties' confidential

relationship, as well as PepsiCo's strict non-disclosure obligations under the CAs, ScentSational disclosed its Trade Secrets and other confidential information to Defendants. 132. Rather than use ScentSational's Trade Secrets in furtherance of the goals and/or

projects set forth in the CAs, PepsiCo and its affiliates and subsidiaries, including Defendants PepsiCo Tech, Quaker, Stokely, and Tropicana, misappropriated, and continue to misappropriate, ScentSational's Trade Secrets and other confidential information by using them to file and prosecute the '549 and '834 Applications, and to obtain the '637 Patent. 133. By misappropriating ScentSational's Trade Secrets, PepsiCo and its affiliates and

subsidiaries, including Defendants PepsiCo Tech, Quaker, Stokely, and Tropicana, violated their duties of trust and confidentiality arising out of the parties' confidential relationship, as well as their contractual duties under the CAs.

33
{10176/608923-000/0110758L1 }

134. information,

By misappropriating Defendants obtained

ScentSational's immediate, direct,

Trade

Secrets

and other confidential commercial benefits

and substantial

including, but not limited to, (i) not having to invest extensive time, labor, research and development, or skill into developing them; (ii) preventing PepsiCo's direct competitors from commercializing ScentSational the Trade Secrets and confidential information; and (iii) preventing information to pursue

from using the Trade Secrets and other confidential

opportunities with, inter alia, Defendants' competitors.

135.

As a result

of Defendants'

past

and continuing misappropriation of

ScentSational's Trade Secrets and other confidential information, ScentSational was damaged, and continues to suffer damages including, but not limited to, cancellation of the Coca-Cola and CSD Projects, as well as other similar financially lucrative opportunities. 136. The damages caused to ScentSational by Defendants' misappropriation of Trade

Secrets are ongoing, irreparable, and, permanent. 137. Based on the foregoing, ScentSational prays that PepsiCo, PepsiCo Tech, Quaker,

Stokely, and Tropicana be enjoined from further use of Scentxational's Trade Secrets for a..TJ.Y purpose whatsoever, and that ScentSational be awarded damages in an amount that, upon information and belief, is in excess of $100 million. COUNT II Breach of Contract: the '03 CA (Against All Defendants) 138. Plaintiff repeats and realleges paragraphs 1 through 137 of the Complaint as if

fully set forth herein.

34
{10176/608923-000/01107581.1 }

139.

On December 29, 2003, PepsiCo, on behalf of PepsiCo Tech, Quaker, Stokely,

and Tropicana, and ScentSational, entered into, duly executed, and agreed to be bound by, the '03 CA. 140. Pursuant to the '03 CA, PepsiCo agreed that, inter alia, "Confidential Information

disclosed [to them] hereunder shall be retained in confidence in the same manner used to protect [their] own confidentiality and trade secrets rights and shall not be disclosed to others or used for purposes other than the Project." 141. ScentSational relied upon PepsiCo's promise and disclosed its "Confidential

Information," as defined in the '03 CA, to PepsiCo, which consisted of, inter alia, ScentSational's Orange Juice Trade Secrets. 142. PepsiCo, PepsiCo Tech, Quaker, Stokely, and/or Tropicana breached, and

continue to breach, their obligations under the '03 CA by, inter alia, using ScentSational's Trade Secrets to file and prosecute the '549 and '834 Applications, and to obtain the '637 Patent. 143. Specifically, the use of ScentSational's Trade Secrets by PepsiCo to file and

prosecute the '549 and '834 Applications, and to obtain the '637 Patent, for the exclusive commercial benefit of Defendants was not the purpose of the Project under the '03 CA. 144. Thus, by using ScentSational's Trade Secrets to file and prosecute the '549 and

'834 Applications, and to obtain the '637 Patent, Defendants breached their obligations to (i) retain them "in confidence in the same manner used to protect [their] own confidentiality and trade secret rights" and (ii) not ''use [ScentSational's Trade Secrets] for purposes other than the Project." 145. CA. ScentSational fully performed and discharged all of its obligations under the '03

35
{I 0176/608923-000/01107581.1}

146.

As a direct result of the breach of the '03 CA by PepsiCo, PepsiCo Tech, Quaker, ScentSational has suffered, and continues to suffer, damages

Stokely, and/or Tropicana,

including, but not limited to, cancellation of the Coca-Cola and CSD Projects. 147. The damages caused by PepsiCo, PepsiCo Tech, Quaker, Stokely, and/or

Tropicana's breach of the '03 CA are ongoing, irreparable, and permanent. 148. Based on the foregoing, ScentSational prays that PepsiCo, PepsiCo Tech, Quaker, Trade Secrets for any

Stokely, and Tropicana be enjoined from further use of ScentSational's purpose whatsoever, and that ScentSational

be awarded damages in an amount that, upon

information and belief, is in excess of $1 00 million. COUNT III Breach of Contract: the '04 CA (Against All Defendants) 149. Plaintiff repeats and realleges paragraphs 1 through 148 of the Complaint as if

fully set forth herein. 150. On December 8, 2004, PepsiCo, "on behalf of itself and its subsidiaries and

affiliates," which necessarily includes PepsjCo Tech, Quaker, Stokely, ~nd Tropicana, on the one hand, and ScentSational, on the other hand, entered into, duly executed, and agreed to be bound by the '04 CA. 151. Pursuant to the '04 CA, PepsiCo agreed to, inter alia, "hold and maintain the

information disclosed by the disclosing party hereunder in confidence and trust for the sole and exclusive benefit of the disclosing party, and shall not use the information for its own benefit or for the benefit of any third party."

36
{l01761608923-000101107581.1}

152.

In reliance on PepsiCo's

promises, ScentSational disclosed "Information,"

as

defined in the '04 CA, to PepsiCo, which consisted of, inter alia, ScentSational's Orange Juice

Trade Secrets. 153. PepsiCo, PepsiCo Tech, Quaker, Stokely, and/or Tropicana breached their

obligations arising under the '04 CA by, inter alia, using ScentSational's Trade Secrets "for [PepsiCo, PepsiCo Tech, Quaker, Stokely, and/or Tropicana's] own benefit" to file and prosecute the '549 and '834 Applications, and to obtain the '637 Patent. 154. Specifically, by using ScentSational's Trade Secrets to file and prosecute the '549

and '834 Applications, and to obtain the '637 Patent, Defendants breached their obligations to (i) "hold and maintain information disclosed by [ScentSational] [... ] hereunder in confidence for the sole and exclusive benefit of [ScentSational] and (ii) to "not use the [Trade Secrets] for [Defendants'] own benefit or the benefit of any third party." 155.
CA.

ScentSational fully performed and discharged all of its obligations under the '04

156.

As a direct result of the breach of the '04 CA by PepsiCo, Pepsif'o Tech, Quaker,

Stokely, and/or Tropicana, ScentSational has suffered, and continues to suffer, damages including, but not limited to, cancellation of the Coca-Cola and CSD Projects. 157. The damages caused by PepsiCo, PepsiCo Tech, Quaker, Stokely, and/or

Tropicana breach of the '04 CA are ongoing, irreparable, and permanent. Indeed, pursuant to the express terms of paragraph 4 of the '04 CA, the parties acknowledged that: "[N]o remedy at law for damages is adequate to compensate for a breach of the provisions set forth in this Agreement and that the party injured by such breach shall be entitled to temporary or permanent injunctive relief against any such breach, without the necessity of proving actual damages. The award of permanent or temporary injunctive relief shall in no way limit any other

37
{I 0 176/608923-000/0 1107581.1 }

remedies to which the injury party may be entitled as a result of any such breach." 158. Based on the foregoing, ScentSational prays that PepsiCo, PepsiCo Tech, Quaker, Trade Secrets for any

Stokely, and Tropicana be enjoined from further use of ScentSational's purpose whatsoever, and that ScentSational

be awarded damages in an amount that, upon

information and belief, is in excess of $1 00 million. COUNT IV Breach of Contract: the '05 CA (Against PepsiCo Tech) 159. Plaintiff repeats and rea11eges paragraphs 1 through 158 of the Complaint as if

fully set forth herein. 160. On July 26, 2005, PepsiCo Tech and ScentSational entered into, duly executed,

and agreed to be bound by the'05 CA. 161. Pursuant to the '05 CA, PepsiCo Tech agreed to, inter alia, "use the other's

Confidential Information for the sole purpose of the Project," and "not to disclose either orally or in writing to any third party or to use in any way except as expressly granted herein (i) any of the Confidential Information received from the other [... J." 162. In reliance on PepsiCo's promises, ScentSational disclosed "Confidential

Information," as defined in the '05 CA, to PepsiCo Tech which included, inter alia, ScentSational's Orange Juice Trade Secrets. 163. PepsiCo Tech breached its obligations arising under the '05 CA by usmg

ScentSational's Trade Secrets to assist PepsiCo in its filing and prosecution of the '549 and '834 Applications, and to obtain the '637 Patent.

38
{ 10176/608923-000/01107581.1}

164.

Specifically, the assistance of PepsiCo in its filing and prosecuting of the '549 and

'834 Applications, and obtaining the '637 Patent, was not the purpose of the Project under the '05 CA. 165. Thus, by using ScentSational's Trade Secrets to assist PepsiCo in its filing and

prosecution of the '549 and '834 Applications, and obtaining the '637 Patent, PepsiCo Tech breached its obligations to (i) only use ScentSational's Project" and (ii) not "disclose [ScentSational's Trade Secrets "for the sole purpose of the

Trade Secrets] either orally or in writing to any

third party or to use [same] in any way except as expressly granted herein." 166. the '05 CA. 167. As a direct result of the breach of the '05 CA by PepsiCo Tech, ScentSational has ScentSational fully performed and discharged all of its obligations arising under

suffered, and continues to suffer, damages including, but not limited to, cancellation of the CocaCola and CSD Projects. 168. The damages caused by PepsiCo Tech's breach of the '05 CA are ongoing,

irreparable, and permanent.

169. Based on the foregoing, ScentSational prays that PepsiCo Tech be enjoined from Trade Secrets for any purpose whatsoever, and that ScentSational

further use of ScentSational's

be awarded damages in amount that, upon information and belief, is in excess of $100 million. COUNTY

Breach of Contract: the '10 CA (Against PepsiCo)

170. Plaintiff repeats and realleges paragraphs 1 through 169 of the Complaint as if

fully set forth herein.

39
{101761608923-000/01107581.1 }

171.

On February 2,2010, PepsiCo and ScentSational entered into, duly executed, and

agreed to be bound by, the '10 CA. 172. Pursuant to the ' 10 CA, PepsiCo agreed that, inter alia, "it w[ould] use

Confidential Information solely in connection with the Project." 173. In reliance on PepsiCo's promises, ScentSational disclosed "Information," as

defined in the ' 10 CA, to PepsiCo and its Affiliates, which consisted of, inter alia, ScentSational's Orange Juice Trade Secrets. 174.
PepsbCo

breached its obligations ansmg

under the ' 10 CA by using

ScentSational's Trade Secrets to :fileand prosecute the '549 and '834 Applications, and to obtain the '637 Patent. 175. Specifically, PepsiCo's use ofScentSational's Trade Secrets to file and prosecute

the '549 and '834 Applications, and to obtain the '637 Patent, for PepsiCo's exclusive
commercial benefit, was not "in connection with the Project," let alone "solely in connection

with the Project." 176. the '10 CA. 177. As a direct result of the breach of the ' 10 CA by PepsiCo, ScentSational has Scentsational fully performed and discharged all of its obligations arising under

suffered, and continues to suffer, damages including, but not limited to, cancellation of the CocaCola and CSD Projects. 178. The damages caused to ScentSational by PepsiCo's breach of the' 10 CA, are

ongoing, irreparable, and permanent. Indeed, as set forth in paragraph 15 of the ' 10 CA: "Each Party understands and acknowledges that any disclosure or misappropriation of any of the other Party's Confidential Information in violation of this Agreement may cause the other Party irreparable harm, the 40
(10176/608923-000101107581.1 }

amount of which may be difficult to ascertain and, therefore, agrees that the other Party shall have the right to apply to the aforementioned courts [including the Southern District of New York] for an order restraining any such threatened or further disclosure or misappropriation and for other such relief as the other Party shall deem appropriate, such right to be in addition to

the remedies otherwise available to the other Party at law or equity." 179. Based on the foregoing, ScentSational prays that PepsiCo be enjoined from

further use of ScentSational's Trade Secrets, for any purpose whatsoever, and that ScentSational be awarded damages in an amount that, upon information and belief, exceed $100 million. COUNT VI Unfair Competition (Against All Defendants) 180. Plaintiff repeats and realleges paragraphs 1 through 179 of the Complaint as if

fully set forth herein. 181. Defendants obtained immediate, direct, and substantial commercial advantages by

misappropriating ScentSational's Trade Secrets. These advantages include, but are not limited to, (i) not having to invest extensive time, labor, or skill into developing the Trade Secrets; (ii) preventing PepsiCo's direct competitors from commercializing the Trade Secrets and confidential information; and (iii) preventing ScentSational from using its Trade Secrets. 182. Upon information and belief, Defendants' misappropriation of ScentSational's

Trade Secrets and confidential information, as described, supra, constitutes unfair competition. 183. As a proximate result of the unfair competition engaged in by Defendants,

ScentSational was damaged, and continues to be damaged by, for example, cancellation of the Coca-Cola and CSD Projects, and other similarly lucrative opportunities. 184. The damages caused to ScentSational by Defendants' unfair competition are

ongoing, irreparable, and permanent.

41
{10176/608923000/01107581.1}

185.

Based on the foregoing, ScentSational prays that Defendants be enjoined from Trade Secrets for any purpose whatsoever, and that ScentSational

further use of ScentSational's

be awarded damages in an amount that, upon information and belief, is in excess of $100 million. COUNT VII

Unjust Enrichment (Against All Defendants) 186. Plaintiff repeats and realleges paragraphs 1 through 185 of the Complaint as if

fully set forth herein. 187. ScenrSational, not Defendants, expended substantial time, labor, skill, research

and development, and capital to develop ScentSational's Trade Secrets and confidential information. Indeed, it was only through the parties' confidential and contractual relationships that Defendants passively learned of ScentSational's Trade Secrets and confidential information, for which PepsiCo paid no value to ScentSational. 188. Defendants were enriched by way of their misappropriation of ScentSational's

Trade Secrets and other confidential information. 189. Specifically, Defendants obtained immediate, direct, and substantial commercial

advantages by misappropriating ScentSational's Trade Secrets. These advantages include, but are not limited to, (i) not having to invest extensive time, labor, or skill into developing the Trade Secrets; (ii) preventing PepsiCo's direct competitors from commercializing the Trade Secrets and confidential information; and (iii) preventing ScentSational from using its Trade Secrets. 190. ScentSational. Defendants' aforementioned unjust enrichment was at the expense of

42
{I 0176/608923000/01107581.1}

191. ScentSational's

Specifically,

as

result

of

Defendants'

bad

faith

misappropriation

of

Trade Secrets and confidential information, ScentSational has been damaged,

and continues to suffer damages including, but not limited to, cancellation of the Coca-Cola and CSD Projects, and other similarly lucrative opportunities. 192. Accordingly, by misappropriating ScentSational's Trade Secrets and confidential

information at the expense of ScentSational, Defendants have been unjustly enriched. 193. Based on the forgoing, equity and good conscience dictate that Defendants make

restitution to ScentSational in an amount that, upon information and belief, is in excess of $100 million. COUNT VIII Constructive Trusts (The '549 and '834 Application; the '637 Patent) 194. Plaintiff repeats and realleges paragraphs 1 through 193 of the Complaint as if

fully set forth herein. 195. During their confidential relationship, the parties executed the CAs, wherein

Defendants expressly promised to, inter alia, maintain the confidentiality of ScentSational's

Trade Secrets and confidential information and only use them in furtherance of the goals and/or projects contemplated by the CAs. 196. In addition, Defendants impliedly promised during the parties' confidential

relationship to maintain the secrecy of ScentSational's Trade Secrets and confidential information. 197. In detrimental reliance upon Defendants' express and implied promises,

ScentSational transferred its assets (i.e., ScentSational's Trade Secrets and confidential information) to Defendants.

43
{10176/608923-000/0110758L1 }

198.

In breach of their duties and promises arising out of the parties' confidential

relationship, as well as their contractual duties under the CAs, Defendants misappropriated, and continue to misappropriate, ScentSational's Trade Secrets and confidential information by filing and continuing to prosecute the '549 and '834 Applications, and obtaining the '637 Patent. 199. For the reasons discussed, supra, Defendants have been, and continue to be,

unjustly enriched through their misappropriation of ScentSational's Trade Secrets and confidential information. 200. Based on the foregoing, ScentSational prays that this Court impose constructive

trusts upon the '549 and '834 Applications, and the '637 Patent, in favor of Scentsational, awarding ScentSational all benefits realized by Defendants in connection therewith. COUNT IX Correction of Inventorship under 35 U.S.c. 256 (The '637 Patent) 201. Plaintiff repeats and realleges paragraphs 1 through 200 of the Complaint as if

fully set forth herein. 202. '637 Patent. 203. Through omission and error, Landau was not listed on the '637 Patent as the Landau is the sole inventor, or at least a joint inventor, of all of the claims of the

inventor or an inventor of the inventions claimed in the '637 Patent. 204. The omission of Landau as an inventor, or joint inventor, on the '637 Patent

occurred without any deceptive intent on the part of Landau. 205. Based on the foregoing, ScentSational prays that this Court issue an Order to the

Director of the USPTO and Defendants requiring that Landau be listed as the sole inventor or, in the alternative, a joint inventor, of the '637 Patent. 44
{10176/608923-000101107581.1 }

PRAYER FOR RELIEF WHEREFORE,

based on the foregoing, Plaintiff prays for judgment against Defendants

as follows:
A.

An award of actual, consequential, incidental and special damages, plus pre and

post-judgment interest thereon, as well as punitive damages and the costs of this action, in an amount to be determined at trial, as a result of Defendants': (i) past and ongoing misappropriation of ScentSational's Trade Secrets and other confidential information in connection with the '549 and '834 Applications, and the '637 Patent; (ii) breach of the '03 CA; (iii) breach of the '04 CA; (iv) breach of the '05 CA; (v) breach of the ' 10 CA; (vi) unfair competition based upon the acts complained of herein; and (vii) unjust enrichment based upon the acts complained of herein.
B.

Constructive trusts placed upon the '549 and '834 Applications, and the '637

Patent, awarding Plaintiff all of the benefits realized by Defendants from the '549 and '834 Applications, and the '637 Patent, as well as the technologies, methods, and the like forming the bases thereof C. An order to the Director of the USPTO and Defendants requiring that Landau be

listed as the sole inventor or, in the alternative, a joint inventor, of the '637 Patent. D. An order requiring PepsiCo to assign all right, title, and interest in and to the '637

Patent to Plaintiff, on behalf of Landau. E. An accounting of all benefits realized by Defendants from the '549 and '834

Applications, and the '637 Patent, as well as the technologies, methods, and the like forming the bases thereof.

45
{l01761608923-000/01107581.1}

F.

A permanent injunction against Defendants from further prosecution of the '549 Trade

and '834 Applications, or any other patent application that makes use of ScentSational's Secrets or confidential information. G.

A permanent injunction preventing Defendants from making any further use of

ScentSational's Trade Secrets and other confidential information for any purpose whatsoever.

DEMAND FOR JURY TRIAL Plaintiff demands a trial by jury for all claims so triable. Dated: December 5, 2013 White Plains, New York
~~

Respectfully submitted,

Melvin C. Garner Peter S. Sloane Cameron S. Reuber Jonathan W. Thomas LEASON ELLIS LLP One Barker Avenue, Fifth Floor White Plains, New York 10601 Telephone: (914) 288-0022 Facsimile: (914) 288-0023 Email: Garner@LeasonEllis.com Email: Sloa..1.e(a).Leaso:nEllis.com Email: Reuber@LeasonEllis.com Email: Thomas@LeasonEllis.com Joel B. Rothman

SCHNEIDER ROTHMAN INTELLECTUAL PROPERTY LAW GROUP, PLLC 4651 North Federal Highway Boca Raton, FL 33431 Telephone: (561) 404-4350 Facsimile: (561) 404-4353 Email: joel.rotham@sriplaw.com Attorneys for Plaintiff

46
{10176/608923-000/0110758 1.1}

EXHIBIT A

MUTUAL CONFIDENTIALITY

AGREEMENT

1.

Parties

This Agreement is between PEPSICO, INC., on behalf of The Quaker Oats Company, StokelyVan Camp, Inc. and Tropicana Products, Inc., its affiliates and subsidiaries ("PEPSICO") and SCENTSATIONAL TECHNOLOGIES, LLC ("COMPANY"), each having the addresses set forth below. 2. Background and Pm:pose of Disclosure

PEPSICO and COMPANY desire to work together to develop prototypes for applications using COMPANY'S technology for flavor incorporation in plastic materials for release in head space (the "Project"). Both PEPSICO and COMPANY have certain information which they consider to be confidential and proprietary regarding the subject matter of the Project and it will be necessary for each party to disclose its confidential information to the other during the course of the Project. 3. Description of Confidential Information

Each party's interest in the Project and the fact that the parties are working together on the Project is considered to be confidential information. In addition, any and all information disclosed by one party to the other in connection with the Project, whether disclosed in writing, orally, visually or by samples, is considered confidential information, unless such information falls within the exceptions set forth below (hereinafter any and all such information shall be collectively referred to as "Confidential Information"). Each party agrees to disclose to the other party only such of its Confidential Information as may be reasonably necessary to accomplish the purposes of the Project. 4. Agreement to Maintain Confidentiality

The recipient of Confidential Information agrees that Confidential Information disclosed to it hereunder shall be retained in confidence in the same manner used to protect its own confidentiality and trade secret rights and shall not be disclosed to others or used for purposes other than the Project. 5. Limited Disclosure

The recipient of Confidential Information further agrees to limit disclosure of Confidential Information to those employees who are needed to accomplish the purpose stated above, and only then to employees who have agreed to be bound by the obligations of the recipient hereunder.

6:

Effective Date and Length of Obligation

The. effective date of this Agreement is the latter date of acceptance by both parties. The recipient's obligations of confidentiality and non-use for Confidential Information hereunder shall last for five (5) years from the date that the disclosing party discloses such Confidential Information to the recipient. Notwithstanding the foregoing, recipient's obligations of confidentiality and non-use relating to product formulae, ingredients, trade secret or manufacturing know-how, will survive termination of this Agreement. 7. Exceptions to Confidential Information

Confidential Information shall not include any information which, in the form disclosed by the disclosing party, a) was publicly available at the time of disclosure by the disclosing party; b) became publicly available after disclosure by the disclosing party through no fault of the recipient; c) was in the recipient's possession prior to disclosure by the disclosing party; as evidenced by the recipient's written record, and was not the subject of an earlier confidential relationship with the disclosing party; or d) was rightfully acquired by the recipient after disclosure by the disclosing party from a third party who was lawfully in possession of the information and was under no obligation to the disclosing party to maintain its confidentiality. 8. Return of Confidential.Inforl1lation

After the accomplishment of the purpose stated above, or at any other time requested by the
disclosing party, the recipient shall return or destroy, at the disclosing party's direction, all documenis, samples or other materials embodying Confidential Information, and shall retain no copies thereof; 9. Disclaimer of Other Relationships

This Agreement does not create a relationship of agency, partnership, joint venture, or license between the parties. This Agreement does not obligate either party to purchase anything from or sell anything to the other party. 10. Governing Law and Jurisdiction

This Agreement shall be governed by. and construed and enforced in accordance with, the laws of the State of Pennsylvania without regard to its provisions concerning conflicts or choice of law. 11. Amendments

This Agreement supersedes all previous agreements between the parties regarding the Confidential Information and cannot be canceled, amended or modified except by written agreement between the parties.

12.

Disclosure of Labeling and Other Regulatory Information

COMPANY agrees that any information disclosed to PEPSICO that is required by law to compile ingredient legends for PEPSICO'S products and otherwise comply with the laws and regulations governing their distribution and sale shall not be subject to the confidentiality and non-use obligations of this Agreement, and PEPSICO shall be free to disclose and use such information as required by law.

PEPSICO, INC. 700 Anderson Hill Road ~chase,~ 10577

SCENTSATIONAL TECHNOLOGIES, LLC 425 Old York Road

Jenkintown.

BY

b~
~~
\~--\~

BY
TITLE

/7
-03
DATE

u-(!
G_1 __ ~
1_0 __~_~ __

79046

DATE

i~(_~_7 __

ScentSationa)_Mutual Conf Agtee_S Raniwaia.doc REVISED 1218103

EXHIBITB

BILATERAL CONFIDENTIALITY AGREEMENT

PepsiCo, Inc., on behalf of itself and its subsidiaries and affiliates, with offices at 700 Anderson Hill Road, Purchase, New York 10577 ("Pepsi';), and ScentSational Technoloqies, LLC ("ScentSationan plan to discuss matters respecting and to share data, information and materials regarding certain development initiatives and/or business plans and objectives, inCluding specifically (but not IliTl'itedto) Fr~pp.uc:<cino and related products. Sihce in the course of our discussion's and work together, one party ma9 dtsC::!9Se fo the other certain internally qenerated data, materials, documents, specifications and/or other mformation which is competitively sensitive, proprietary and/or confidential to that party, and since competitively sensitive, confidential or proprietary intormatlon of either party may result during the course of our discussions (collectively, the "Information"), both parties agree to the following.

1. Each receiving party agrees to accept in strict confidence any and all Information disclosed or made available to it by the disclosing party, and will not disclose it to any third party or otherwise violate the terms hereof, directly or iii(jjrectly, without first obtaining the written consent of the di$Clbsing party, unless pursuant to a reql.(ite(n~nt or teq\J'est of a goverrjmehtal agericy.or ceurt' or ct;ir:npetentJuristjlGtioh to the extent such dlsclosure is required by valid law, negliiatlon or court order arid sufficient nqtice is given by the receiving p.~rtY to the disGlo$ing party of any such requirement or request in order to permit the cll$closing party to seek an appropriate protective order or exemption from such requirement or request. WithptJt limiting the foregoing in any way, each receiving party agrees to hold in strict confidence the fact that it is engagir'1.g in dlscusslons with the other with respect to the subject matter, as well as the terms of any agreement and ahy on-going discussions respectlnq a future business relatlonshlp concerning the parties, Any public statements, press releases or broadcasts prepared; made, approved or consented to by either party hereto w.hich discusses a possible relationship With the other party shali be mutually agreed to by the parties in Writing With respect to content and timing prior to publication, release or broadcast. .

2. However, the confidentiality oblrg~tiohs reCE1ivihg party witM respect to any Information which:
(i) (ii)

olitlJn~d in thi!) Agr~enient shall not be bihding On each party at the time of disclosure;

is in the pessesslor' of the receiving

is or becomes known to the public generally through no fault or other action of the receiving party; is obtained lawfully from a third party who is not known to have obtained such information directly or indirectly pursuant to an obligation to keep such Information confidential; or is developed by the employees, agents or representatives of the receiving party wholly independently, as a result of its own efforts; and Without the knowledqe or benefit of the Information received from the disciosinfj party.

(iii)

(iv)

3. the following:

In order to minimize the inadvertent disclosure of the Information, each receiving party agrees to

(i)

it will make no more than two (2) copies of any written Information received from the disclosing party and marked or otherwise designated as "Confidential" or "Proprietary Information" without the prior approval of the disclosing party;

(ii)

it will disclose the Information only to its employees on a need-to-know basis who require the Information for the performance of their duties in connection with work or possible work together, provided such employees have been shown a copy of this Agreement and agree to be bound by its terms;
it will return or destroy (and certify in writing to such destruction) all written or tangible Information received from the disclosing party or which incorporates or references any Information of the disclosing party (including all copies thereof) upon the disclosing party's request to do so.

(iii)

4. The parties hereto acknowledge that no remedy at law for damages is adequate to compensate for a breach of the provisions set forth in this Agreement and that the party injured by such breach shall be entitled to temporary or permanent injunctive relief against any such breach, without the necessity of proving actual damages. The award of permanent or temporary injunctive relief shall in no way limit any other remedies to which the injured party may be entitled as a result of any such breach.

5. Each receiving party acknowledges that the Information disclosed by a disclosing party is the confidential and proprietary information and property of the disclosing party, and that the receiving party does not have, and nothing herein shall be construed to imply, any claim, right, title, property or other interest or license of any kind or nature in the Information. Each receiving party shall hold and maintain the Information disclosed by the disclosing party hereunder in confidence and trust for the sole and exclusive benefit of the disclosing party, and shall not use the Information for its own benefit or for the benefit of any third party. 6. Nothing herein shall be deemed to obligate either party to purchase any goods or services from the other, or to enter into a further relationship with the other party.
7. The obligations undertaken under this Agreement shall be effective retroactively to the date any Information was first disclosed, made available or provided by a disclosing party to the receiving party. This Agreement contains the entire understanding to date between the parties hereto relative to confidentiality of the Information. This Agreement may not be amended or supplemented except in a writing signed by both parties. The terms and conditions contained in this Agreement shall be governed by and construed. iri accordance with the laws of the State of New York, without regard to its conflict of laws provisions.

In order to indicate acceptance of the above-mentioned terms and conditions, the parties have signed this letter in the space herein provided by an officer duly authorized.
ACCEPTED AND AGREED TO: SCENTSATIONAL TECHNOLOGIES, LLC PEPSICO, INC.

Date: -

.....

/--'zt:~~.-rq'-7------

Date: -==--_-=--=---'0=--.14'--

EXHIBIT C

/)t{,pSi
CONFIDENTIA",ITY AND NON-liSE AGREEMENT FOR THE l\4UTUAL DISCLOSURE OF JNFORMAnON

Partj~ Tlli~ A,g~ent. is betw~11 Pepsi-Cola Te~hnical Operation$~ Inc. ("PEPSI1 and Sc:en*~o ... al Tec:hnologi~, t.tC and &:ent;Satio~ Techl1ologi~, LLC's
Affiliates (COUe(ilively, "Gompany")" having the address~s set forth below. each

Purpose PEPSI is in the business of dev~oping. Pa91<agingfor manLifacture and mark~iji1g ~od products, inch.idin.g. without limltatl9ri. ()!i!verage, snack, cereal, grain and other fQoP: prMucts. PI:;PSI afl\:I. C()mp~"y l:!re ii'itr.e~ted tl'i Working -otogeth~rd.ooM t.h~ d~lielopmeht .of aroma rel~;!~ing pac~~9'n9 components for r~dy.,to-drinl.< CQtfee prpducts (the "Projeqt"), In order to nav~ m~ningful dlscusslcns, PEpSI and COl'llpal'ly, attheir respective sole di$cretiQn, may, from tiOU! to time. olsctose to the other ~ajt1 information that is considered <;Qnfjdential by. the disQqsing. party. .Botl)

sale and marketing of foods including, but not limited to, knoW-how. economic information, busine$s ~nd technical development plans, marketing strategy, data, technical information. khOW-how, process and product InfplJTlation. methods of maTlufacture, intangible assets, and derivative works made by the receiving party that are based on Confidential Information disclos~d to it by the other, a~ ~.~I a$ the factthat PEPSI, any PEPSI Affi'ia~ aridfor

~ny

COlil~ny are in di$!J$$ion oj) anY $tJQi~ alld tI:l~ n~tu~ of an.y i$u~ect

PEPSI

rela_c:t

company

and

being di$tussett
Limited

PE?$I and GOITIpany an~ wi11ili,Q to do

.$0

pf<lvided that the oth~r ob$ervl:)$ .~rt;:lin requiremEmt$to o;lSSI,J re that such ir)for'il:l~tion is ~ept confipElntial and not usecl.in any way. exeept as.~r~sly authorized hElrein. DesCription Of Confidentiallnfurmation "Confideotiiid ltiforroatioh" of PEPSI shall mean all information disClos~ to COmpany by PEPSI disclosed either directly or iridir~y, orcllly, inwriting or QYin$p~ti9n of equipment. materials or processes us~d b.y PEPSI. Confidential Information of PEPSI shall also mean all information that is proprietary or Confidential to a third party, any PEPSI Affiliate and/or any PEPSI related company. 'Confidential InfoonatiQn' of Company shall mean ill_fq01l~~Oridi.sCto$~ to PEPSI by Company {~ th~ is marked "Confidential" and(or (b) that is orally disclosed and identified as "Oonfldentlal'' at the time of disclosure and clearly described in a writing designating the infonnation as "Confidential" delivered to PEPSI within a reasonable period of time followin.g the initial disclosure (about thirty (30) calendar days). Confidential Information shall include informatibn and data relative to the research, deveiopment, production, pac:ka.ging, control,

Oisclosure of Confidential Infotmation Each party expreSsly wishes to receive only that Confidential information w!ilch is neC9!?saryfor accOm.plishingthe purpo!?es of ttli$ ..Agreement and each party Will..take r~s9nabl~ stElPS to limit its qi$dlos~re of COhfid~tiaf Ihformation only to that which is deemed necessary. Use of Confidential InforiTlatlon Each part)' hereby t9 .th~ oth~ tile right -to U$ia th~ other'!'I C(lnfid~nti.~1 lnforrnation for th~ sol~ PtJmplil~ o.f th~ Project and ~ reguE*.sted s~i6c~ily ll'1Writin(:l to de so by PEPSI, to proVid~such services and/or.goods to PEPSI.

grants

Agreement .to Maintain Confidentiality and ReStrict Use Each party agrees not to disclose either orally or in writing to any third party or to use in any way except as eXpressly .granted herein {ij any of the Confidential InfOl'ma~on. receivecl from the other and (ii) any information developed by the receivin.g party that is based on Confidential lntormation received from the other, except such of said information as (a) now is or hereafter becomes publlshed or generally available to.the public throu.gh no. breach of this Agreement; or (b) can be demonstrated by prior written record to already be in the possession of the receiving Party; or

CONFIDENTIALITY

AND NON-USE AGREEMENT

FOR THE MUTUAL .DlSCLOSURE OF INFORMATION

(c)

is provided to the receiving party by a third party under no obligation of confidentiaHtyto the disclosin_gparty.

Each party shall maintain the Confidential Information disclosed to it by the other in a manner at least equal to the degree of care it uses to protect its own Confidential
Information, but in any event, not less than a reasonable degree of care. Even after any of the Confidential Information becomes available under the exceptions listed above, the receiving Party a_grees not to disclose the tact that such information was disclosed or samples provided by the other or derived from information or samples provided by the other. Confidential Information which is specific, such as Confidential Information pertaining to materials, samples, processes and/or equipment shalt not be deemed to be within the exceptions specified abOVE:! merely because it is embraced by more g~n:il published or available information. In addition, any combination of features shall not be deemed to be Within th~ ex~eptiQns specified merely because individual f~t~i"es are published or available. but orily if the combination itself and its principle of operation are published or available. Limited Disclosure Each partY agr~s to limit dlsseminafion of Confidential Information to employees having a need-to-know and who have been advised of th~ obli_gations and restrictions assumed hereunder and the receiving party shall cause all such persons to comply with the terms herein. Notwithstandin_g the foregoing, Company agrees that PEPSI shall have the unrestricted right to share Company's Contidentiallnformatlon with any PEPSI Affiliate and/or any PEPSI related

Information is the confidential and proprietary information and property of the other and that the receivin_g party does not have any claim, right, title, property or other interest or license of any kind or nature in the Confidential Information. The receivin.g party shall hold and maintain the Confidential Information in strict confidence and in trust for the sole and exclusive benefit of the disclosing party. Return of Confidential Information Upon written request by either party or upon termination of any discussions between Company and PEPSI. each party shall promptly return to the other any and all matenals provided by the other that contains the other party's ConfidentIal Information, and destroy materials derived from the receiving party's access to such Confidential Information together with all reproducnons thereof in any form which the receiving party may have in its possession or control. Injunctive Relief Each party understands and acknowledges that any disclosure or mi~ppropriation of any of the other party!s Confidential lnformation in violation of this Agr~/l1ent may Cause the other party irreparable harm, the amount of which may be difficUlt to ascertain and, therefore, agrees that the other party shall have the ri.ght to. apply to a court of competent jurisdiction for an order restraining any such threatened or further dfsdosure at misappropriation and for such other relief as the other party shall deem ap.propriate, such right to be in addition to the remedies otherwise available to the other party at law or in equity. No Prohibition from Other Activities Each party acknowledges that the other may currently or in the future be developing information internally or receivin_g information from other parties that is similar to that party's Confidential Information. Accordingly, nothin_g in this Agreement will be construed as a representation or agreement that either party will refrain from developin_gor authorizin_g another to develop any products concepts, systems or

company.
No Right or Claim to Confidential Information by a Receiving PartY . A party receiving Confidential Information acknowledges that the Confidential

CONFIDENTIALITY

FOR

THE MUTUAL DJSCLosURE

AND NON-USE AGREEMENT OF INFORMATION

techniques that are slmilar to those contemplated in any discusslons between the parties or disClos~ or embodied in one party's Confidential InfOrmation provided that the reqeiving party does not violate any of its obligations under this Agreement.

Obligations Cover

All Related

Discussions

New Developm ents Resulting trom Discussions UnleSs otherwise expressly provided in a subsequent writing signed by both parties, should any inventions, improvements,
discoveries or other devel()pr'r)ents. be

Both PEPSI and Company intend and agree that the obligations accepted under this Agreement shall be effective retroactively to the date Confidential Information was first disclosed, made available or shared between the parties, Affiliates and/or related companies.
Effective Date and Length of Obligations

created as a result of disc.ussions between PEPSI aM Company ifierelnaft~r; "Work ProdUct), PEPsi and Company ~gr~ that
such

Wotk.

Product

and

all intellectual .property, to

property rights therein and therE$) snaIl be

PEPSI's conceived, sole

and

eXclusive

regardless of whether such Work Predug is

made, allthored or ret1!,1~

The effective date of this Agreement is the latter date of acceptance by both parties. Ej3ch party's obligations of confideriiio;llity and non-use for Confidential Information req~ived hereundet shah e)dendfor five is}y~ars from the date of each separate diSGIosure except that Confidential Information relating to formula, in,gredien~i trade. secrets or manufacturing know-how shall not expire unless it is subjeCt to one or more of the above-recited exceptions.
Governjng Law

practice solely by PE;PSI, solely by ComPany or jointly by PEPSI and Compfjny. Suqh Work Product is Confidefltial Infomiation. PEPSI shall reimburse .Company for its reasonable expenses in copperating With PEPSI to secure PEP$I'S inte)l~I,J~1 prpperty . rigllts to . the WorK Prpduc:t. COITlP~ny shall reimbur$~ PEPSI for its reasonable expens.es in cooperc;iting ~h Company to secure Cortlpany'.s ilitelleclu~1 property rights to the Work Product to whICh it is entitled. However. at no time nor under any circumstances wiil there be C!ny
contingent or continuing ~ such as

and construed in accordanCe with the

This Agreement constitutes tne E1ntire un~rstandir1g and agreement of the parties with respect to the subject matter hereof and sl,lperse<ies all prior and. conternporaneo~s agreements or understandingS, inducew ents or I;Ori(j'ition$~E)Xpressor imPlied, written or oral bEitween the parties. with. r~pect ~o the subject matter nereof. Thil> Agreemept may not be Cimended or supplemi"iteq except in a writing signed by both p~ies. The ~rmS conJainmi herein shall.be gQV'~ by of New York without regard to prinCiples of conflict oflaW$.

rOYillfies, commissions or profit participation. payable by either party in connection with any Work Product.
No Obligation to Do Business . Nothing herein shaIl be d~me9 to obligate PEPSI to purchase any goods or services from Company or to enter into any further relationship with Company. Disclaimer of Other Relationships This Agreement does not

laws of the

state

create

of agency, partnership, venture or license betweenthe parties. relationship

a joint

CONFIDENTIALITY AND NON-USE AGREEMENT FOR THE MutUAL DJSCLOSURE OF INFORMATJON

IN WITNESS WHEREOF, each party's acceptance of these terms is indicated by the authorized signature of a representative of each party in the spaceprovided below,

SCENTSATIONAL

TECHNOLOGIES,

LLC

Dare:

~~-_\~~(-_o_~ c; --

PEPSI-COLA TECHNICAL OPERATIONS,

lNC~
Address: 700 Anderson Hill Road
Purchase, NY 10577

J~

Si.gnature: Name: Title: Date:

QUUo(. ~~
Q6('(,()
~. \)S

S=IMOl'oid~A
Fo!;)(.)~

\jf>

~-C

,j;)"lo{

ScentSalional TechnologieslLC_Pspsi_Mutual ConfAgree~ To..Srockdac

:mSloS

EXHIBITD

AGREEMENT

NO:

201 O-NDA-03004
PEPSICO, INC. CONFIDENTIALITY AGREEMENT

This Confidentiality Agreement ("Agrccmcnl") is made ,111<1 entered into as of the last signature date Oil this Agreement ("Ellt'ctivc Date") between Pepsif'o, Inc .. a NOrLh Carolina corporation. doing business at 700 Anderson Hill Road, Purchase, New York 10577 ("PEPSl"), ami Scent'Sational Technologies LLC, located and doing business at 425 Old York Rd, Jenkintown, PA, 19046, United States, and its affiliates (collectively. "COMPANY"). COMPANY, and PEPSI are collectively referred to herein as "Parties", in singular or plural usage. as required by context. Both Parties agree that any disclosed Confidential information. as defined below, provided by the disclosing party, (as "Owner"}, 10 the receiving party (as "Recipient"), provided lor the limited purpose staled in the Confidential Information Transfer Record ("CITlr'}. as more fully defined herein. shall be treated in accordance with the following provisions.

I.

HackgnHlnd and Purpose of Disclosure. PEPSl

and/ur one or more of its A ffiliatcs (as defined herein) and ('OM PA NY are interested in discussing and potentially conducting research, pursuant to the Project as described in the CITR. [n order 10 have meaningful discussions and Garry out any agreed upon research, certain in fi.mnalion related to the Project may be disclosed that is considered confidential. In consideration of the attendant opportunity for mutual benefit, the sufficiency of which IS acknowledged and agreed, The Parties agree that PEPSI and/or its Affiliates and PEPSI CITR Entity (as defined in the C!TRI (,'PEPSI GROUP") and COMPANY, :JS the circumstances and terms the CITR dictate, may disclose and receive Confidential Information (as defined hereunder) related (0, the Project, provided that the Recipient observes the requirements sci forth herein to assure lhat such Confidential In lo rrnati 011 is kept confidential and not used in any way, except as expressly authorized herein.

PEPSI or its Affiliates who are working on behalf PEPSI or its Affiiiates in furtherance ofthe Project.

of

c.

or

All such information is considered Confidential Information. regardless of whether the disclosure is made in writing, by submission of samples, orally, visually or otherwise. Confidential Information also includes. without limitation, a) that PEPS.! GROUP Of ,my of its personnel i) plan to or are meeting with COMPANY, ii) has mel with COMPANY, arid/or iii'} has visited COMPANyiS facilities. b) that I)EPSI GROUP is considering retaining COMPANY to provide services, c) any criteria, specification, details and results relating 10 llny testing, and d) photographs and other documentation visits and the likeness ofpersonnel of PEPSi GROUP.

or

2.

L)estTiption of Confidential Informatiun. Unless subject to the exceptions set forth in Section 5:

a. Under a l'wo-Way CITR (as defined bclmv),"Conlidcn(jal Information" as used in this Agreement and any relevant CI'l'R means any and all Information disclosed. obtained, developed and/or information 1.11<11 the Recipient is exposed to under the Project whether disclosed in writing, orally, visually or by samples. b. Under:1 One-Way Cll'R (,IS defined below), unless subject to the exceptions set forth in Section 5, "Confidential lnformation" as used in this Agreement and any relevant (,ITR shall mean any and all information disclosed, developed and/or exposed by, and/or obtained from PEPSl, its Affiliates or third parties authorized by

For the exchange of' Confidential Information lor a specified Project under this Agreement 11 (,ITR shall be agreed to and signed by PEPSI or an Affiliate and Company, Each Project must have a CTl'R, otherwise there shall be no Agreement between the Parties. "ClI'R' as used herein shall mean a document reIerencing the Agreement number above, defining the Project and identifying the Project Length, and upon signature by both Parties, shall become all attachment 10, and deemed incorporated by reference into, this Agreement. The initial CrTR is attached hereto as Artachmeut A As used herein. "Two-Way ('ITI<" shall mean a CITR wherein information disclosed, obtained, developed, and/or information that the Recipient is exposed to is considered Con fidential Information and subject to the obligHtions of confidentiality and non-usc set forth in this Agreement. As used herein "One-Way CITR" shall mean a C!TR wherein only information disclosed. del/eloped and/or exposed by and/or obtained liOln PEPSI is considered Confidential information and subject to the obligations of confidentiality sci forth in this Agreement "C'ITR

Effective Dale" as used herein shall signature date on the relevant CITR.

mean

the

last

Under a One-Way ('ITR, and in the absence of a written <lgreernent to the contrary, COMPANY acknowledges that all Information disclosed by COMPANY to PEPS! its Affiliatets), whether disclosed "in writing, orally, visually or by samples by COMPANY. shall not be confidential or proprietary to COMPANY, and no limitations shall be placed on PEPSI'S or its Affiliate' right to use or disclose such information, except for those limitations which may result from a valid patent held by COMPANY on such information. COMPANY will make no claim against PEPSI or any of its Affiliates with respect to its use or disclosure 0r information disclosed by COMPANY, including but not limited to, copyright and/or trade dress infringement, except for infringement of any valid patent held by the undersigned and of which PEPSI has actual written notice. Furthermore, COMPANY represents [hat all information which it. transmits or otherwise discloses to PEPSI GROUP and or third parties working on PEPSI GROUP'S behalf, is not information with respect to which COMPANY is under any obligation 10 any third party to keep confidential or which COMPANY knows to be the proprietary property ol'uny third party. 3. (.,imlh:d Diselosurc lind Usc of Cunfidcarial tnformatlon. COMPANY agrees thai il will (i) not
disclose PEPSI GROUP'S Confidential Information 1.0 any third parties, (ii) limit disclosure of PEPSI GROUP'S Confidential Information only [0 its employees who are needed to accomplish the purpose of the Project, and only then l,() i hose enlployee.s who have agreed to be bound by the obligations hereunder, and (iii) not usc PEPSI GROUP'S Confidential lnfonnauon other than for the sole purpose of the Project. The following provisions shall apply in the event a TwoWay CITR is executed for the Project: (a) PEPSI agrees that it will limit disclosure of Confidential lnformauon only to those having a need to know and who arc needed 10 accomplish the purpose of a Project, including without limitation PEPSI'S Affiliates and third party contractors working on PEPSI GRCHW'S behalf, and only then to those who have agreed 10 he hound by the obligations ,)f PEPSI hereunder; (b) COMPANY acknowledges and agrees thai PEPSI'S agents working in furtherance of the Project have no actual authority (express or implied) or apparent authority (0 enter into any contracts on behal I' PEPSI; (c) COMPANY acknowledges and agrees that such agents are independent contractors and not employees of PEPSI; (d) P!2PSI agrees that it will use Confidential Information solely in connection with the Project: (c) each party expressly wishes to receive only that Confidential Information of the other which is necessary for accomplishing the purposes of this

Agreement and the Project set forth in the (,ITR; and (I) each party will take reasonable steps to limit its disclosure of Confidential information only to that which is deemed necessary, The Parties agree that nothing contained in this Agreement gives one Party the right to tile any patent applications for or otherwise disclose or use any intellectual property containing the Confidential lnformation of the other Party. The Owner hereby grants to the Recipient the right to Lise (he Owner's Confidential Information for the sole purpose of the Project and not for <my other purpose whatsoever. Notwithstanding anything in this Agreemen I to the contrary, the Parties agree that PEPSI GROUP has the right to consumer test any products developed pursuant to the Project, including te.sting under non-confidential conditions. Each Party acknowledges that unless otherwise agreed. the Recipient may currently or in the future be developing information internally, Or receiving information from other parties that is the same as or similar 10 the Owner's Confidential Information. Accordingly, nothing in this Agreemenr shall prevent either Party from conducting independent research in the same subject area as the discussions and any research project between the Parties, including without limitation from developing or authorizing another to develop any products concepts, systems or techniques that arc similar 10 those contemplated in any discussions or research projects between the Parties or disclosed or embodied in the Owner's Confidential lnformation, provided that the Recipient docs not violate any of its obligations under this /\greenlCni. Tbc Parties agree that the obligations of confidentiality and non-use as set forth in this Agreement extend only to Confidential Infirrmatiun.

4. PEPSI

Effective Ollh' lind I.cngl h of Obligation. Both and COMPANY intend and agree that (he obligations with respect to imy and all Confidential
information disclosed under this Agreement and any CITR executed pursuant to this Agrer:n;cnl. shall be effective retroactively from the dale Confidential Information was first disclosed. made available 01" shared by the Owner or anyone acting on its behalf, !()!' a period of five (5) years [Tom the date that the Owner or anyone acting on its behal r first discloses such Confidential Information 10 the Recipient. Notwithstanding the foregoing, each Party's obligations confidentiality and non-use relating to product formulae. ingredients. trade secret or manufacturing know-how shall no! expire unless subject to one Of more of the exceptions recited below.

or

or

to Confideutlal Information. information shall uol include any information which. in the form disclosed, a) was publicly available ,11 the time of disclosure, h) becomes publicly
Confidential

Exceptions

available after disclosure through no fault of the Recipient, c) is in the Recipient's possession prior to disclosure, as evidenced by the Recipient's prior written record, and was not the subject of an earlier confidential relationship with the Owner, d) is rightfully acquired by the Recipient after disclosure by a third party who was lawfully in possession of the Confidential Information and was under no obligation 10 the Owner to maintain its confidentiality, or e) is independently developed by the Recipient without reliance upon or reference 10 the Confidential Information of the Owner. Confidential lnformarion supplied by the Owner to the Recipient pursuant to this Agreement will not be deemed to be publicly available or already in the possession of the Recipient merely because disclosures concerning the same general subject matter arc in the public domain or in the prior possession of the Recipient. The Parties agree that MY information disclosed that is required by law 10 compile ingredient legends for PEPSI'S products and otherwise comply with the laws and regulations governing their distribution shall !lot be subject to the confidential and non-use obligations of this Agreement, and the Parties shall be free to disclose and IISC such information as required by law.

archival copy for record keeping purposes, such archival copy to be kept under secure and confidential conditions to retain the confidence of the Confidential Information. 8. Aftlliatc. As used herein, "Affiliate" means, with

respect to PEPSI, any company or other legal entity. in whatever country organized, that i) controls PEPSI, ii) is
controlled by PEPSI, and/or iii) is under the control of the same entity that controls PEPSI. For this purpose, control of an entity shall mean direct or indirect ownership of thirty percent (30'Vo} or more of the voting interest in, or thirty percent (30%) or greater equity interest of, sud entity. or maximum percentage allowed hy law in the country of the conunlled entity. 9. Termlnatlun, Each Party may terminate this Agreement for any reason by sending the other Party written notice of its intent to terminate. Termination of this Agreement, however effectuated, shall not affect or release the Parties thereto from their obligations of confidentiality and non-use under this Agreement and any existing CITR.

10.

Disclaimer

of

Other

b.

by Law, In the event lhal a Recipient or any its officers, directors; employees, subsidiaries, bottlers, contract manufacturers, co-packers, affiliates, representatives, attorncys, consultants, financial

l)isdosun~ Required

or

Agreement docs no! create partnership, joint venture, or Furthermore, this Agreement buy, nor Obligate COMPAN

Relatlenships. This a relationship agency, license between the Parties, docs not obligate PEPSl td Y to sell, any ingredient,

or

product or service whatsoever,

I I. Entire Agreement. This Agreement sets forth the full and complete understanding of the Parties in regard to the Project. Moreover there are no representations, warranties, understandings Of agreements between the Parties with respect 10 the Project other than those expressly set forth herein. [2. Assignlllcnt, The obligations provided by this Agreement shall be binding upon, and shall inure to the benefit of each Party. its successors, assigns, OJ" other legal representatives. The provisions of this Agreement shall control and prevail in the event that any provisions of any subsequent purchase order, order acknowledgment, or other contract or portion of a. contract between the Parties is in conll iet herewith, unless the subsequent agreement expressly refers to and overrides this Agreement.

advisors and/or agents (collectively. "Representative") is

requested, pursuant to or required by applicable law, regulation or legal process, h) disclose ally Confidential Information. the Representative agrees a) 10 noti fy the Owner pn)inptJy of the exisi,~n(,.:c~ terms and circumstances surrounding such request or obligation ~o that the Owner may take steps to sed an appropriate protective order or otherwise resist. or mUTOW such request nr requirement, h) to usc commercially reasonable efforts to assist the Owner in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded such Confidential Information. and c) if disclosure of such Confidential luformarion is required 10 prevent the Representative from being held in contempt or exposed to some other penalty or violation of' law, to furnish only such portion 0(' the Confidential lnformation as the Representative is advised by counsel rhar the Representative is legally compelled to disclose and exercise commercially reasonable efforts to obtain assurance that eon fidential treatment will be accorded such Confideruial lnformation. Return of Confidential Information. A Iler the accomplishment of a Project set forth in a CITR, or al any other lime requested by the Owner, (he Recipient shall return or destroy, at the Owner's direction. all documents, samples or other materials embodying Confidential Information. The Recipient shall retain only one (I)
7

13. Modifications and Wnivcr~. This Agreement shall not be amended or modified except by written instrument executed by PEPSI and COMPANY. The failure of rEPSl or COMPANY to insist upon strict performance of any provision hereof shall not constitute a waiver of: or estoppel against asserting the right 10 require such performance in the future. nor shall <l waiver or estoppel in anyone instance constitute a waiver or estoppel with respect to a later breach of a similar nature

or otherwise. In the event of a contliet between any term or condition of this Agreement. and any CJTR or any other amendments or other attachments to this Agreement (collectively "Attachments"), the term or condition of this

Agreement controls, unless the Attachment expressly

slates, and the Parties agree, that such term or condition in [he Attachment shall supersede this Agreement.

14. Severability. In the event that any provision of thi~ Agreement or part thereof is determined (0 be illegal or otherwise unenforceable by a competent court of law, such provision or part thereof shall be (a) modified to the minimum extent necessary to render such provision enforceable and preserve the Parties' intent, or (1)) severed, if necessary, and in each case the balance of the Agreement shall continue in full force and effect. 15. (;ovcrnillg Law. This Agreement shall be governed by, and construed and enforced with, the laws of the State of New York without regard to its conflicts or choice of law. The Parties consent to the exclusive jurisdiction of the Federal court situated in the Southern District of New York or the New York State courts located in Westchester County, New York for the resolution or any disputes as to the construction of this Agreement. Each Party understands and acknowledges that any disclosure or misappropriation of any ofthe other

Party's Confidential Information in violation of this Agreement may cause the other Party irreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that the other Party shall have the right to apply to the aforementioned courts for an order restraining any such threatened or further disclosure or misappropriation and for such other relief as the other Party shall. deem appropriate, such right to be in addition to the remedies otherwise available to the other Party at law or in equity.

16. Construction. This Agreement shall not be construed against the party preparing it hut shall he construed as if both Parties jointly prepared this Agreement, and any uncertainty and ambiguity shall not be interpreted against anyone party, 17. Signatures. This Agreement Illay be executed in two or more counterparts. each or which shall be an original. but all of which shall constitute one and the same instrument, A facsimile or .pdf copy of a signature of a Party hereto shall have the same effect and validity as an original signature. The Parties acknowledge and accept that (he other Party's electronic signature shall have: the same effect and validity as an original hand-written signature,

AGREED

AND ACCEPTED: INC.

FOR: PErSICO,

By:

Name: Title: Date:

Rocco Simonetta Director, R&D 02/22/2010

Name:

Title:
Dale;

c i

!CA/ZtJ

ATTACHMENT A TWO-WAY CONFIDENTIAL TNFORMATION TRANSFER RECORD

'I'his Confidential Information Transfer Record ("ClTR"), effective as of the last signature date on this (,'ITR ("(,ITR Effective Date") is between Pepsi-Cola Company (,'PEPSI CITR Entity") and SccntSationul Technologies LLC and its affiliates (severally and collectively referred 10 as "COMPANY"). PEPSI Cl'FR Entity and COMI'ANY arc collectively referred 10 herein as "Parties" in singular or plural usage, as required by context, COMPANY and Pepsito. Inc. arc Parties 10 that Confidentiality Agreement (defence number 2010-NDA-G3004 ("Agreement"). The terms and conditions of the Agreement are incorporated herein by reference and arc made part of this CfTR in their entirely. Unless otherwise stated, each capitalized term used herein has 111C same meaning established for it in the Agreement. The OTR is for a Project. The Project shall be subject to and performed ill accordance with: a)
b)

the terms and conditions of the Agreement. lind the terms and conditions of the C'ITR, which is binding upon COMPANY and I)I:WSI CtTR Entity.

All prior negotiations and agreements between the Parties hereto relating to the Project contemplated hereby arc superseded by this ('ITR and the Agreement Where the PEI}SI CITR Entity is not PepsiCo, lnc., the Parties agree that only the PEPSI CfrR Entity and not PEPSI nor any PEPSI Affiliate, shill! have any liability and obligations under the Agreement or this C'I'J'R for disclosures pursuant to the Project. Notwithstanding the foregoing, the ['EPSI ('ITt{ Entity shall. be responsible for any unauthorized disclosures by PEPSI or any PEl'S! Affiliate; Under this Two-Way CITR. the Parties agree (hat PEPSI, PEllSI Affiliates, PEPSI crm Entity and/or any third parties working on behalf of PEPSI, PEPSI Affiliates and/or PEPSI CITR Entity, and COMPANY may be disclosing Confidential Information pursuant 10 the Project sci forth in this CITR. I)urposc of COlllidential 1nformation Transfer. The Confidential Information being disclosed under this CITR is (0 be used solely tor the purpose of sharing openly the details behind aroma-bused technologies lor possible use and application in and/or relating 10 the LRB portfolio, Protein containing beverages, Carbonated beverages, W~ller/enhal1cedwater, Sports drinks, Elicrgy drinks, Dairy based drinks. Juices/juice-containing beverages. Coffee products. and Tea products (the "Project"). The Recipient of any Confidential Information under this ('ITl{ may not usc thul Confidential Information for any purpose other than the Project. In the event that the Parties enter into a subsequent agreement with each other concerning the purchase Of salt: of products or services, the provisions of the Agreement concerning confidentiality or information shall supersede and prevail over any conn icting provisions of Ihe subsequent agreement, unless the subsequent agreement expressly overrides [he Agreement. Length of Project. This CtTR governs disclosures of Confidential Information commencing on the CITR Effective Dale and continuing thereafter for a period oftwenty foul' (24) months (the "Project Length"). All other terms and conditions or the Agreement shall remain in full force and effect. Nothing contained herein shall be construed as amending, modifying or superseding the terms. of the Agreement referenced above, This CITR shall no! be amended or modified except by written instrument executed by PEPSI CITR Entity and COMPANY.

This CITR may be executed in two or more counterparts. each of which shall be an original. but all of which shall constitute one and the same instrument. A facsimile Of .pdf copy of a signature of a Party hereto shall have the same effect and validity

as an original signature. The Parties acknowledge and accept that the other Party's electronic signature shall have the same effect and validity as an original hand-written signature. AGREE!) AND ACCEPTED: FOR: I''':I'SI

crra Entity

By:

~~S~
Rocco Simonetta

Name:

F()R: COMPANY By:

Name:

Tille: Dale:

EXHIBITE

Attorney Docket No. 056943.00722

MODIFYING FLAVOR EXPERIENCE VIA AROMA DELIVERY

FIELD OF THE INVENTION [OOOIJ The present invention relates generally to a method for modifying flavor experience via aroma delivery. More particularly, the present invention relates to a method of applying an aroma to a comestible's packaging and releasing such aroma to modify the aroma, flavor and/or taste experiencedby a consumer,and the comestible product with modified attributes. BACKGROUND [0002] The taste experienced and/or perceived by an individual upon consumption of a comestible is influenced by many factors. For instance,taste may vary dependingon the ingredients added to the product, processing techniquesused, and the smell of the product. [0003] Although others have found various ways to provide consumers with products with modified tastes and/or flavors, the modifications usually require the addition of an ingredienus) or compound(s) to the product, which in turn alters the composition of the product, resulting in a need for the manufacturerto reformulatethe product Such reformulationresults in added cost to the manufacturer. Additionally,the magnitude and character of the aroma experience may be influenced by factors such as the partitioning or solubility of aroma components, limiting the formulation and the resultant consumer experience. Modifying the taste of a comestible without altering the compositionof the comestible is advantageousfor a variety of reasons, in addition to alleviatingthe need to reformulate,there is no concernthat an added ingredientwill react unfavorablywith the existing ingredients in the product, and there is no need to re-label the product. [00041 The applicant discovered that releasing an aroma in the air prior to and/or while a person is consuming a comestible, affects the consumer's perceived taste of the comestible. Moreover, certain aromas can be used to counteract, enhance, or modify

Attorney Docket No. 056943.00722

certain properties affecting the taste and/or flavor of the comestible. including freshness, off-notes, bitterness. sourness and/or sweetness. Although the primary benefit of the present invention is to enhance aroma, additional benefits may also include learned cues such as freshness and quality associatedwith aroma that can lead to consumerlikabilityof the comestible,in additionto taste modulation.
[0005]

Since obesity, high blood pressure and high cholesterol are health concerns for many individuals, there exists a need for a healthy alternative to the higher calorie/sugar product'>.At least one application of the method and comestibleproduct of the present invention includes applying an aroma to a package to alter the consumer's perceived sweetness of the comestible; therefore, less sugar can be added to the comestible, resulting in a healthier alternative for the weight/calorie-consciousconsumer. The present invention may also be used to mask, modify or reduce off-notes, off-aromas, or off-taste and other undesirable characteristics imparted to the comestible during processing, cooking, or the like. Moreover, the present invention can also modify positive aromas and/ormodulate positivetastes.

[0006]

There are many ways to adhere an aroma to a product's packaging, for example by using the technology described in US Patent No. 5,249,676 and US Patent No. 5,281,471. Additional means to adhere the product to the package include those described in US Patent No. 6,102,224.
BRIEF SUMMARY

[0007}

The present invention relates to a method for modifying flavor experience via aroma delivery. In one aspect of the present invention, aromais appliedto the outside of the packaging of a beverage. The aroma is released into the atmosphere and is presented to the consumer prior to consuming the beverage. The delivery of the aroma via orthonasal and/or retronasal routes causes a gustatoryresponse, a physiological,and/or a psychological response from learned experiences with the aroma, altering the consumer's perceived taste of the beverage.

-2-

Attorney Docket No. 056943.00722

DETAILED DESCRIPTION OF THE INVENTION [0008] The present invention relates to comestible products. In particular, the present invention relates to a method for producing a comestible with perceived enhanced attributes without altering the compositionofthe product, and the product displaying these enhanced attributes. "Modified attributes" may relate to taste and/or aroma and means reducing bitterness, sourness, enhancing sweetness, aroma enhancement, freshness, or modifyingother properties of a comestible."Aroma" means a substance containing an odor and capable of being released into the atmosphere."Comestible" as used herein means any edible product, includingbeverages. [0009] Aroma deliveredorthonasally and/orretronasallyaffects flavorexperience. The flavor or aroma used in the present invention may be delivered to the consumer via orthonasal and/or retronasal routes. The olfactory interactions trigger a gustatory and/or somatosensoryresponse causing the consumer to perceive a modified flavor or taste. More specifically, the aroma volatile compounds deliveredprior to consuming the comestible enhance the flavor experience while the consumer is ingesting the comestible. Secondarily,the experience or associationsthat have been learned by the consumermay also influence the flavor experience. In particular, the aroma delivered to the consumer in accordance with the present invention may trigger learned experiences or associations between the aroma and the associated comestible. The delivery of the aroma in accordance with the present invention may cause a psychological response from the consumer's learned experiences with the composition,thereby altering the consumer's perceivedtaste of the comestible. [0010] In one aspect of the present invention, the aroma applied to the comestible's packaging and/or added to the comestible does not alter the composition of the product. Additionally, upon ingestion, the aroma used in the instant invention does not alter the compositionof the comestible inside the consumer's mouth.
[0011]

Aroma. The aromas that may be used in accordance with the present invention include, but are not limited to natural and artificial aromas such as lemon, vanilla, vanillin, orange (e.g., orange oil), cola, lime, berry, coffee, citrus (e.g., citrus oil),

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Attorney Docket No. 056943.00722

spice, sugary, perfumes, maltol, furaneol, citrus oils, aldehydes, esters, alcohols, terpenes, sesquiterpenes, sulfur compounds, and combinations thereof. Such aromas may be GRAS or non-GRAS. The concentrations of the aromas that may be applied to the comestible's packaging vary depending on the aroma used. For instance, the aroma concentration may range from implicit (i.e., below noticeable concentration) to explicit (i.e., at a noticeable concentration). More specifically, the concentration of an aroma used in accordance with the present invention may range from about 0.003 gram to about 0.1 gram of aroma per gram of packaging (wt. aroma/wt packaging). Moreover, the aroma delivered via the present invention may be the sole source of aroma, or may be a secondary source of aroma to the aroma(s) already existing in the product. The aromas that may be used in conjunction with the present invention may impact physiological processes and may be used for purposes of stress reduction, relaxation, mood, and/or performance enhancement, in addition to refreshment enhancement. [0012] Comestible. The comestible used in the present invention may be a food, beverage, chewing gum, or other edible product. The beverages that may be used include, but

are not limited to carbonated soft drinks, water, fruit juices, coffee and coffee-based beverages, non-carbonated soft drinks, isotonic beverages and dairy-based beverages. Foods that may be used include, but are not limited to oatmeal, cereals, snack foods (salty and sweet snacks), bars and soups. [0013] Sweet enhancement. In accordance with the present invention, the sweetness of a

comestible is enhanced by applying an aroma to the product's packaging. One of the advantages of such sweetness enhancement includes brix reduction (i.e., reduction of the amount of sugar in the comestible). For example, by applying a sweet aroma, such as furaneol, vanillin, maltol, sugar distillate, or a mixture of these aromas to the packaging of a carbonated soft drink, the manufacturer can reduce the amount of sugar traditionally added to a ''full calorie" carbonated soft drink (i.e., not a diet or light beverage). This reduction in sugar can result in weight management/health and

wellness benefits to the consumer, as he is ingesting fewer calories while at the same time experiencing a taste similar to that of a higher-calorie/sugar comestible. Using a

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headspacearoma with a beverage to enhance its overall perceived sweetnessintensity offers beverage manufacturers the ability to optimize taste attributesof its beverage(s) with reduced sugar/sweetenerlevels.
[0014]

Mask and reduce off-notes. Oftentimeswhen foods and beveragesare processedusing techniques such as pasteurization,steaming,heating, cooking, etc. such processing can give rise to off-notes in a comestible. Moreover, other factors such as age, environmental stress on products, and packaging materials can also influence and create off-notes. The off-notes can be aroma and/or taste off-notes. In another aspect of the present invention, the aroma and/or flavor applied to the comestible'spackaging can be used to mask or reduce certain off-notes associated with a comestible. For example, citrus oil, such as orange oil applied to the packaging of orange juice delivers freshness, masks cooked off-notes, and imparts sweetness to the juice; whereas vanillin applied to the packaging of a hot-fill dairy product will mask milk off-notes in the hot-fill dairy product, such that when the vanillin is released into the air and presented to the consumer, he tastes a hot-fill dairy product with reduced and/orno off-notes.

[0015]

Bitter reduction. In another aspect of the present invention,the aromamay be applied to the comestible's packaging to reduce or eliminate the consumer's perceived bitterness of the comestible. For example, beverages such as citrusjuices may have a bitter taste and/or bitter off-notes due to processing procedures such as pasteurization or retorting. By placing citrus oil, such as orange oil, on the packagingof the orange juice product, and following release of the aroma to the air, the aroma is presented to the consumer, causing the consumerto perceive an orange juice product with reduced bitterness.

[0016]

Freshness ("true to fruit character"). In yet another aspect ofthe present invention,the method can be used to deliver an aroma to the consumer, causing the consumer to perceive freshness and/or improved freshness of the comestible upon ingesting the comestible. For instance, a lemon aroma may be applied to the comestible's packaging, after such aroma is released into the air, such aroma is presented via the

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orthonasal or retronasal route to the consumer, resulting in the consumer perceiving the comestible to have enhanced freshness, or more "true to fruit" characteristics. It was also found that the aroma deliveredin accordancewith the present inventionmay cue freshnesswhich in turn cues quality. The combinationof positive cues produces a "halo effect" leading to the consumer's overall liking of the product. The Applicants further discovered that quality cues not only infer "good" quality, but also may trigger an emotional linkage between the aroma and a comestible. This linkage is based on memory and experiences associatedwith the aroma. For example,the fresh smelling attributes of orange juice can trigger emotions and memories of special times and places, such as fond childhood memoriesassociatedwith the aroma, therebyleadingto consumeracceptabilityof the beverageas a result of this aroma-emotionlinkage.
[0017]

Overall aroma enhancement. Another aspect of the instant invention includes using the method described herein for overall aroma enhancement of the comestible. For instance, in accordance with the present invention, a lemon-lime aroma is applied to the packaging of the beverage. Upon releasing the aroma prior to drinking, the consumer perceives a stronger/more intense lemon-lime flavor while drinking the beverage.

[0018]

Packaging. Various techniques for applying the aroma to the packaging may be used in accordancewith the present invention. For instance, the aroma can be sprayed onto or into the packaging, a film or cover may be lifted off of a strip or reservoir containing the aroma, or some other friction-releasedmechanism may also be used. Friction is one of many release mechanisms for aroma delivery, and the aroma may also be delivered/released by mechanisms including, but not limited to compartments and chemical reactions. The aroma may be added to the inside, outside, or both on the inside and outside of the product's packaging. One of ordinary skill in the art would recognize that a cap or other removable portion of the package is part of the comestible's packaging. One of ordinary skill in the art would also recognizethat any packaging or addition/extensionto the packaging that includes a reservoirto house the aroma and a way to release it into the atmosphere could be used in accordancewith the present invention. The aroma may also be placed directly into or onto the

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comestible. Examples of packaging that may be used in accordance with the present invention include, but are not limited to bottles (plastic and glass), cans, plastic or paper bags, caps, closures, straws, cardboardboxes and coatings thereto.
[0019]

In accordance with one aspect of the present invention, aroma may be applied to the closure in trace amounts (i.e., parts per trillion) or more significant amounts (i.e., grams) dependingon the aroma character and potency of the aroma being used. For instance, about 0.009 g of orange aroma or 0.003 g of coffee aroma is applied to a closure. The closure is then affixed to a single serve container of a beverage, for example,orange juice. Prior to consumption,the consumer twists off the cap of the beverage. The twisting action creates friction, thereby releasing the aroma into the atmosphere. The aroma released fromthe cap causes an aroma-tasteinteractionwithin the consumer thereby altering the perceived taste of the beverage. One of ordinary skill in the art of the food sciences would appreciate that the concentration of aromavaries depending on the types of flavors added and such concentrationsmay evenvary by the vendor and quality of the flavor.

[0020]

The packaging described in this application can be packaging for single-serve or multi-serve containers. As one of ordinary skill in the art of food sciences would appreciate,the aroma concentrationused in accordancewith the present inventionmay be adjusted based on the serving size. It was also discovered that variations in the aroma concentration can affect not only aroma-taste interactions in the immediate vicinity of the user (i.e., under the user's nose while consumingthe product), but also about 1-5 feet, for instance about 1-3 feet fromthe product containingthe aroma.

[0021]

The aroma compounds used in the present invention may be polar, non-polar, or a mixture thereof. Moreover, these compounds may include organic molecules, inorganicmoleculesor a mixture thereof. Polar and/or non-polar aroma compoundsor molecules may be used in conjunctionwith the method and comestibleproduct(s) of the present invention. Such aroma compounds may be also be encapsulated and subsequently applied to the comestible's packaging. For example, encapsulation of aromas such as coffee and lemon in products such as waters and acidic beverages

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exhibit enhanced stability compared to the stability of these aromas when directly added to the product and/or incorporation into the product matrix. For example, the key aroma compound in lemon oil when placed into a beverage loses over 90% of its aroma concentration after five weeks. However, lemon oil when encapsulated and applied to the outside of a bottle remains stable at 900P for at least three months. [0022] As described, the present invention provides a method for modifying flavor experience via aroma delivery. An example of one aspect of the present invention is as follows: [0023] A new aroma-focused packaging/product innovation for orange juice was developed to enhance the overall product experience. experience was enhanced which
It was discovered that the aroma

compensated

for the

fresh orange

juice

characteristics lost during processing. through aroma-taste interaction. [0024] [0025)

In addition taste perception was enhanced

Consumer testing was performed as follows: Each respondent was served one control (current shelf-stable orange juice product) and one test sample.

[0026]

Test samples consisted of chilled shelf-stable juice (current orange juice product) poured into 10 oz glass bottle and capped prior to serving. Encapsulated aromas were pre-applied to the cap prior to the testing. The aroma enhancement was released by friction upon opening the beverage (i.e., twisting open the cap).

[0027]

Respondents were asked to drink: at least a third of each product with a bite of cracker and a sip of water before tasting each sample.

[00281

Following evaluation by respondents, it was found that the test product was significantly preferred compared to the controL The test sample delivered

significantly less aftertaste, more fresh taste, more natural taste and improved sweet quality along with overall/strength of flavor. Additionally, the test product was judged

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by the consumers to be significantly fresher, healthier, more natural, hand-squeezed, higher quality and energizing compared to the control product.
[0029]

This invention may be embodied in other specific forms without departing from the spirit or essential characteristics thereof. The foregoing embodiments, therefore, are to be considered in all respects illustrative rather than limiting the invention described herein. The scope of the invention is thus indicated by the appended claims, rather than by the foregoing description, and all changes that come within the meaning and range of equivalency of the claims are intended to be embraced therein.

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CLAIMS

We claim:
1.

A method for modifying the flavor experience associatedwith a comestible via a. applying at least one aroma on a package of a comestible, such aroma to

aroma delivery comprisingthe steps of: modify a consumer's taste experience and capable of being released into the atmosphere; and b. providing a consumer with the comestible having at least one modified attribute as a result of the interaction between the aroma and the consumer's perceived taste of the comestible. 2. The method of claim I wherein the comestible is a beverage, wherein the at least

one modified attribute is reduced calories, and the at least one aroma is selected from the group consistingof furaneol,vanillin,maltol, sugar distillate and combinationsthereof 3. The method of claim I wherein the aroma is selectedfrom the group consistingof

lemon, vanilla, vanillin, orange, cola, lime, berry, coffee, citrus, spice, sugary, perfumes, maltol, furaneol, orange oil, citrus oils, aldehydes, esters, alcohols, terpenes, sesquiterpenes, sulfur compounds, and combinationsthereof. 4. the package. 5. the package. 6. sweetness. 7. bitterness. 8. notes. The method of claim 1 wherein the at least one modified attribute is masking offThe method of claim 1 wherein the at least one modified attribute is reduced The method of claim 1 wherein the at least one modified attribute is increased The method of claim 1 wherein the at least one aroma is applied to the inside of The method of claim 1 wherein the at least one aroma is applied to the outside of

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9.

The method of claim 1 wherein the comestible is selected from the group

consisting of carbonated drinks, water, fruit juices, coffee-based beverages and dairy-based beverages. 10. A method for modifying the flavor experience associated with a comestible via

aroma delivery comprising the steps of: a. applying at least one aroma to the surface of a package containing a

comestible, the aroma capable of being released into the atmosphere; and b. releasing the at least one aroma to the atmosphere such that upon ingesting

the comestible a consumer perceives a modified taste in the comestible. 11. The method of claim 10 wherein the modified taste is selected from the group

consisting of bitterness reduction, masking off-notes and increased sweetness. 12. The method of claim 10 wherein the at least one aroma is selected from the group

consisting of lemon, vanilla, vanillin, orange, cola, lime, berry, coffee, citrus, spice, sugary, perfumes, maltol, furaneol, orange oil, citrus oils, aldehydes, esters, alcohols, terpenes, sesquiterpenes, sulfur compounds, and combinations thereof. 13. The method of claim 10 wherein the at least one aroma is applied to the outside of

the package in contact with a closure of the package, wherein the at least one aroma is released upon removal of the closure. 14. A comestible comprising: a. b. a package at least partially housing the comestible; and at least one aroma affixed to the packaging, the at least one aroma is

capable of being released into the atmosphere; wherein upon the at least one aroma being released into the atmosphere and the comestible being ingested, a consumer perceives a modified taste in the comestible. 15. drinking. 16. drinking. The comestible of claim 14 wherein the at least one aroma is released during The comestible of claim 14 wherein the at least one aroma is released before

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