Corn Products Company v. Standard Brands, Inc.

• Decision Date: 11 April 1966
• Docket Number: No. 15131.,15131.
• Citation: 359 F.2d 739
• Parties: CORN PRODUCTS COMPANY, Plaintiff-Appellant, v. STANDARD BRANDS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

359 F.2d 739 (1966)

CORN PRODUCTS COMPANY, Plaintiff-Appellant, v. STANDARD BRANDS, INC., Defendant-Appellee.

No. 15131.

United States Court of Appeals Seventh Circuit.

April 11, 1966.

W. Houston Kenyon, Jr., New York City, James P. Hume, Granger Cook, Jr., Chicago, Ill., for plaintiff-appellant, Edward W. Greason, William F. Noval, Robert T. Tobin, Kenyon & Kenyon, New York City, Hume, Groen, Clement & Hume, Chicago, Ill., of counsel.

John C. Butler, Chicago, Ill., Hubert Hickam, Indianapolis, Ind., Maxwell Barus, W. Philip Churchill, Albert E. Fey, New York City, for defendant-appellee, Fish, Richardson & Neave, New York City, Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, Ill., Barnes, Hickam, Pantzer & Boyd, Indianapolis, Ind., of counsel.

Before DUFFY, KNOCH and MAJOR, Circuit Judges.

DUFFY, Circuit Judge.

The complaint herein alleged the infringement of certain claims of the Melnick and Luckmann Patent, No. 2,955,039 issued on October 4, 1960, and owned by the plaintiff. The patent in suit contains sixteen claims of which claims 1, 2 and 9 to 14 are directed to a margarine product, and claims 3 to 8 and 15 and 16 are directed to a process of preparing an edible vegetable oil blend to be used in making margarine. The alleged novelty of the margarine oil is the blending thereof which will be hereinafter described.

Plaintiff alleged that defendant infringed claims 1, 2, 11 and 14 of the patent in suit. Defendant denied infringement, alleged the invalidity of the patent claims, and by a counterclaim, sought a declaratory judgment of non-infringement and invalidity as to all sixteen claims of the patent.

Defendant's products, charged with infringing claims 1, 2, 11 and 14 of the patent, are two brands of margarine sold by defendant under the names "Fleischmann's Regular" (salted) and "Fleischmann's Unsalted."

Since oil suppliers furnished defendant with its margarine oils and this oil was already blended and ready to be made into margarine, no charge was made in the complaint that defendant had infringed process claims 3 to 8, 15 and 16 of the patent in suit.

After a trial, the case was submitted to the District Court without oral argument on March 28, 1963, upon briefs and proposed findings and conclusions filed by each party. A decision was handed down on December 31, 1964, and the findings of fact and conclusions of law were filed on the same day. No opinion was filed. To a large degree the District Judge adopted defendant's proposed findings and conclusions.

The District Court held all sixteen claims of the patent invalid. However, Conclusion No. 8 states that claims 1, 2, 11 and 14 "read on defendant's two Fleischmann margarines" but that "defendant has not infringed such claims for the reason that they are each invalid."

Plaintiff asserts that the patent in suit describes and claims a "new grocery-store margarine" and two processes of making it which, while maintaining unimpaired the butter-like physical characteristics which enable ordinary margarine to be packed in quarter-pound prints, sold in grocery stores and used in the home as butter is used, possesses the novel chemical attribute that its oil phase contains from two to three or more times as much linoleic fatty acid as is found in ordinary margarine, but without substantial increase in the saturated fatty acid thereof, so that the new margarine, in contradistinction to ordinary margarine, contains a substantial excess of natural linoleic acid over saturated fatty acids. The patent defines this excess as a "ratio in excess of 1.0" which means that the quotient arrived at by dividing the percent of linoleic by the percent of saturates is a number greater than one. This ratio is referred to as the "L/S ratio."

Margarine, to be readily saleable, must closely approximate the physical characteristics of butter as to (a) firmness at refrigerator temperatures (50° F.) which permits manufacture and wrapping in the form of quarter-pound prints (sometimes called "printability"); (b) retention of form at room temperature (70° F.) (sometimes called "stand-up" or "nonslumping"); (c) resistance to oil-staining of cartons in warm weather (80° F.), and (d) quick melting just below human body temperature (92° F.) which enables the emulsion to break up on the tongue and thus release flavors, — otherwise the product would have a greasy taste such as a kitchen shortening if spread on the tongue.

A test which is industry-accepted and used in the specification and claims of the patent in suit is called the "dilatometric method." By this method, the "Solids Content Index" ("S.C.I. values" or "SCIs") of a particular oil is determined at each of the temperatures 50°, 70°, 80° and 92° F. These four SCI values are plotted and a curve drawn. This curve, taken with the final melting point of the margarine, constitutes a concise definition of the physical characteristics and it is used in the claims of the patent in suit. A very steep slope in this curve is characteristic of butter.

Vegetable seed oils such as corn, cottonseed and soybean are limpid waterlike fluids at room and refrigerator temperatures. These oils can be hardened by a method termed hydrogenation, and thus hardened, can be used in making margarine. In this hydrogenation process, hydrogen gas is bubbled through hot oil under pressure. The oil contains a catalyst such as nickel or platinum.

Before hydrogenation, vegetable seed oils contain three principal natural components.

1) Poly-unsaturates are fatty acid radicals, which, at two or more places, along the carbon-atom chain, have a deficiency in hydrogen and are capable of adding it there. The most abundant poly-unsaturate is natural linoleic acid having two hydrogen-deficiency points, which comprises nearly 50% or more of corn, cottonseed and soybean oils. Animal fats and coconut oil, in contrast, contain only a very small percentage of linoleic acid.

2) Mono-unsaturates are fatty acid radicals that have a hydrogen-deficiency at one place. The only mono-unsaturate occurring in nature is oleic acid.

3) Saturates are fatty acid radicals which have no hydrogen deficiency point and cannot add hydrogen. They comprise about 10 to 15% of corn and soybean oils and about 23 to 25% of cottonseed oil. They comprise nearly 50% of the animal fats and almost 90% of coconut oil.

Hydrogenation has two effects in an oil. 1) Hydrogen is absorbed at the hydrogen-deficiency points of the poly- and mono-unsaturates, converting linoleic into oleic, and oleic into saturated fatty acid. 2) Disturbances are created in the carbon-atom chains such that existing hydrogen-deficiency points change in character or shift position along the chains without absorbing hydrogen, thereby creating man-made substances called "isomers" that differ in melting point and other characteristics from the natural components of the oil.

In hardening an oil for margarine use, the effort is to obtain a melting point just below human body temperature and an SCI slope about as steep as that of butter. The former is obtained by stopping when the oil's melting point reaches 95° F. The latter is achieved by what is called "selective hydrogenation", a technique which speeds the conversion of linoleic into oleic, and slows the conversion of oleic into saturates.

Plaintiff claims the invention of the patent in suit overcame the dilemma by blending together two moieties of oil of radically different character. One is a liquid unhydrogenated vegetable seed oil such as corn, cottonseed or soybean, which, at temperatures of 50° F. and above is a water-like fluid. The other, the "hard fraction", is a vegetable seed oil partially and selectively hydrogenated to a melting point higher than that required in ordinary margarine, so that no more than about 5% (but preferably none) of the linoleic acid remains, so that saturated fatty acids have not increased more than 16%, and so that the SCI curve of the hydrogenated oil has a slope (between 50° and 92° F.) of from 30 to 45 S.C.I. units.

On August 4, 1962, the Council on Foods and Nutrition of the American Medical Association, published in the American Medical Association Journal, a comprehensive report titled "The Regulation of Dietary Fat." The article advised physicians that the preferred treatment for hypercholesteremia (abnormally high cholesterol content in the blood plasma, a condition claimed to be associated with high incidence of heart attack and strokes) is a diet in which "the ratio of poly-unsaturated fatty acids to saturated fatty acids ranges from 1.1:1 to 1.5:1 (an L/S ratio of 1.1 to 1.5)". The article also recommended specific diets for use in such cases in which "Special" margarine is a mandatory substitute for ordinary margarine and butter.

Plaintiff claims the discovery upon which the invention described in the patent rests is that the particular hard fraction defined in the patent will, when combined with liquid unhydrogenated vegetable seed oil, interact therewith to form itself into a matrix capable of holding the large amount of liquid oil required to provide an L/S ratio materially in excess of 1.0%, with the combination of matrix plus-liquid possessing butter-like physical characteristics at every relevant temperature including the capacity to melt completely at human body temperature, releasing both moieties of the combination as liquids, even though the melting point of the hard fraction before it was combined had originally been higher.

Natural linoleic and other higher poly-unsaturates are referred to in the patent in suit as "essential fatty acids" because they are required for control of plasma cholesterol levels in the human body. The patent states the object of the invention is to provide a margarine "of a high essential fatty acid content" in which there will be "a high ratio of essential fatty acid to saturated fatty acid content," with "a fatty acid pattern approximating that of the liquid...