M & R Dietetic Laboratories, Inc. v. Dean Milk Company
| Decision Date | 21 November 1961 |
| Docket Number | No. 55 C 330.,55 C 330. |
| Citation | 203 F. Supp. 130 |
| Court | U.S. District Court — Northern District of Illinois |
| Parties | M & R DIETETIC LABORATORIES, INC., Plaintiff, v. DEAN MILK COMPANY, Defendant. |
Sidney Wallenstein, Wallenstein, Spangenberg & Hattis, R. Howard Goldsmith, Schneider, Dressler, Goldsmith & Clement, Chicago, Ill., for plaintiff.
Thomas C. McConnell, Dugald S. McDougall, Herman I. Hersh, Theodore R. Scott, Chicago, Ill., for defendant.
This suit involves Patent No. 2,503,866, issued April 11, 1950, on an application filed November 2, 1946.1 The patent concerns a "preparation of a stabilized cream product," a dried cream2 product usable directly in hot coffee.
A study of the evidence and legal precedent impels the Court to conclude that the process and product claims, claims 1-3 and 15-25 of the patent, are valid when limited to the precise ion exchange process disclosed therein, and the product of that process, is valid when conforming to the specified chemical proportions. The Court is further of the opinion that claims 26 and 27 are invalid.
The patented product allegedly obviates the theretofore objectionable characteristic of "feathering" on use in coffee, of the dried product, (or on its being reconstituted into a liquid), and retaining good flavor and low salt characteristics. Feathering is an objectionable scum caused by the reaction of the dried cream powder to the heat and acid of coffee. Defendant's product is a dried blend of rich cream and acid-curd sodium caseinate3 to which lactose and disodium phosphate have been added before drying.
The essence of the plaintiff's invention is its claimed revelation of the need for reduction, within specified critical limits, of the amount of calcium in the product, coupled with the establishment of the precise permissible ratios of calcium to phosphorus, in order to prevent feathering. All the process claims here in issue achieve the desired result by the ion exchange method.4 Its product, claims 26 and 27, broadly delineating the chemical proportions, are not limited to the ion exchange process.
The patent in suit discloses a reduction of the normal amount of calcium in the milk product by an ion exchange process by the filtering of the milk through a sodium material, with the resultant effect of the sodium passing to the milk in the exchange and the calcium passing to a filtering bed. A second step is then taught by the patent whereby the resultant milk is again treated by an ion exchange using a hydrogen cycle which restores the pH5 of the product. This is important because if the strong salt taste were permitted to remain in the product it would dampen the bouquet of the coffee flavor. After relating the purpose of the invention,6 the patent goes on to recite that stabilization of the cream protein could be accomplished by converting the casein to a soluble caseinate, but the chemicals used in accomplishing this remain in the dried cream in the form of salts which dampen the coffee bouquet.
Claim 1 covers a process for producing a "milk material" and claims 2 and 3 a process for producing a dry cream product, treating fluid milk, skim or like milk products having a "substantially normal calcium and phosphorus content and a pH of about 6.5-6.8 with a cation exchange material operating in the sodium cycle, until the calcium content of the product is approximately 20 to 70% of normal and there is secured in the product a calcium to phosphorus ratio of about 0.15 to 0.75, thereby raising the pH of the product, and treating the resulting product with a cation exchange material operating in the hydrogen cycle until the pH of the original milk product is substantially restored." Claims 2 and 3 also provide for "condensing the treated product, adding an amount of butterfat or butterfat-containing material to the condensed treated product sufficient to give the desired fat content in the dried cream but not to increase the calcium to phosphorus ratio beyond the range of about 0.25 to 0.90, homogenizing the mixture and drying it."
A summary of claims 15 to 21 is as follows: (The parentheses indicate parallel varying phrases of the respective claims.)
Claim Phraseology
15-21 A process for producing —
15, 16, 19, 20 a cream product
17, 18 (dry cream)
21 (a milk material)
15-20 comprising treating skim milk and like milk products
21 (comprising treating a fluid milk product)
15-21 having a substantially normal calcium and phosphorus
content and a pH of about 6.5 to 6.8 with a cation
exchange material operating in the sodium cycle, until
the calcium content of the product is approximately
20 to 70% of normal and there is secured in the product
a calcium to phosphorus ratio of about 0.15 to 0.75
16, 17, 20, 21 thereby raising the pH of the product, and treating
the resulting product with a cation exchange material
operating in the hydrogen cycle until the pH of the
original milk product is substantially restored
15 condensing the treated product
18 (condensing and homogenizing the mixture and drying
it)
19, 20 (condensing and homogenizing the mixture)
21 (and drying the completed product)
15-19 adding an amount of butterfat or butterfat-containing
material to the condensed treated product sufficient
to give the desired fat content in the cream
15-20 but not to increase the calcium to phosphorus ratio
beyond the range of about 0.25 to 0.90, and homogenizing
the mixture
The product claims 23 to 25 (resulting from the cation exchange process) in essence cover either a dry cream product, comprising a homogeneous mixture of butterfat and cation-exchanged milk solids not fat (or condensed fluid), having a content of calcium approximately either 20 to 70% of normal or 20 to 45% of normal, and having a calcium to phosphorus ratio ranging from either about 0.25 to 0.90 or 0.25 to 0.55.
Claim 26 reads:
"A dry cream product comprising a homogeneous mixture of butterfat and milk solids not fat having a content of calcium approximately 20 to 70% of normal and having a calcium to phosphorus ratio ranging from about 0.25 to 0.90."
Claim 27 is very similar but with different proportions stated, thus:
"A dry cream product comprising a homogeneous mixture of butterfat and milk solids not fat having a content of calcium approximately 20 to 45% of normal and having a calcium to phosphorus ratio ranging from about 0.25 to 0.55."
It is the plaintiff's position that the invention of the patent was long sought for and especially needed with the development of coffee machines; that the prior art had recognized the problem of feathering, and even of the condition of high calcium content as causative thereof, but had not made the indispensable determination of the critical permissible limits of calcium, and the precise permissible limits, and the importance of the ratio of calcium to phosphorus. The tremendous commercial success is also cited as indicative of the inventive character of the patent.
Plaintiff claims that it has achieved a valid patentable combination with an altogether new and useful result,7 of which there could be no anticipation unless all elements of the invention be found in a single patent, doing substantially the same work.8 It states that neither British Burgess patent No. 542,846 (), nor any other patent anticipates because to be anticipatory the teachings of the patent must be found within the four corners of the prior patent,9 and expert testimony may not be utilized to reconstruct a reference.10
Plaintiff denies any disclaimer by its patent of a product made by acid-curd sodium caseinate, in that the statement in the patent upon which defendant's contention is predicated originated from abandoned experiments which did not relate to the criticality of the Ca÷P ratio, or reduction of calcium. It was a particular dried cream product high in salt content that was disclaimed as not within the patent. In fact, defendant is asserted to have followed the teachings of the patent by reducing salt content by careful washing, and it increased the phosphorus content lost in washing by adding disodium phosphate.
Defendant relies on the prior disclosures in U. S. patents No. 2,011,558 to Berlatsky; No. 800,255 to Wood; Nos. 2,045,097 and 2,225,506 to Otting, and British Burgess patent No. 542,846, as well as certain publications.11
Defendant states its product is an artificial blend of cream, acid-curd sodium caseinate, and lactose, with disodium phosphate added. The product differs from the natural dried powder in that defendant's product has a protein content nearly all casein without substantial proportions of albumin and globulin of the natural product, and more lactose and phosphorus than the natural product. It states that the only differences between defendant's product and the prior art Berlatsky is that Dean adds lactose, and that Wood uses invert sugar (dextrose) instead of lactose, the natural milk sugar. Whereas plaintiff's patent surmounted the unwanted effect of salt in dampening the bouquet of coffee by using the chemical ion-exchange method, defendant utilized the prior art methods of carefully washing the acid-curd casein and then neutralizing it with sodium bicarbonate, as taught by Wood. In this washing process much of the calcium is removed as well as the lactose, albumin, and globulin. Since its product is made in accordance with the prior art, defendant contends it is immaterial...
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