Dresser Industries, Inc. v. Eltra Corp.

• Citation: 432 F. Supp. 153
• Decision Date: 11 June 1977
• Docket Number: No. C 69-613.,C 69-613.
• Parties: DRESSER INDUSTRIES, INC., Plaintiff, v. ELTRA CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of Ohio

432 F. Supp. 153

DRESSER INDUSTRIES, INC., Plaintiff, v. ELTRA CORPORATION, Defendant.

No. C 69-613.

United States District Court, N. D. Ohio, E. D.

June 11, 1977.

John Lansdale Jr., Squire, Sanders & Dempsey, Cleveland, Ohio, Arthur G. Connolly, Connolly, Bove & Lodge, Wilmington, Del., Robert W. Mayer, Dresser Industries, Inc., Dallas, Tex., for plaintiff.

John Ladd Dean, Cleveland, Ohio, John C. Purdue, Owen, Purdue, Emch & Barker Co., Toledo, Ohio, Dugald S. McDougall, McDougall, Hersh & Scott, Chicago, Ill., for defendant.

MEMORANDUM AND OPINION INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW

WALINSKI, District Judge:

JURISDICTION AND STATEMENT OF CASE

This cause came to be tried by the Court, without a jury, between August 7 and August 16, 1973. It is an action for infringement of plaintiff's Patent Number 3,275,461, entitled "Refractory", which was issued on September 27, 1966, to plaintiff's predecessor, Harbison-Walker Refractories Company, as the assignee of Ben Davies and Peter H. Havranek. Plaintiff owns the patent; no issue of title is involved.

The Court has jurisdiction over the parties and the subject matter of this action. Jurisdiction of the subject matter is based on 28 U.S.C., § 1338(a), and the Patent Laws of the United States. Venue is based on 28 U.S.C., § 1400(b), and is proper.

The subject matter of the patent in suit is the manufacture of burned magnesite refractory bricks, commonly used as linings for steelmaking vessels known as Basic Oxygen Furnaces. Both parties are manufacturers of such bricks.

The patent in suit covers a brick used in the steelmaking industry whose chemical composition yields particularly attractive physical properties. The unusually high hot strength and heat resistance enables processors of steel utilizing the Basic Oxygen Process to run many more molten batches ("heats") before it becomes necessary to replace the protective linings of the furnaces, an obvious saving in labor, material, and furnace down time. Plaintiff herein seeks to enjoin the manufacture and sale by the defendant of a brick which allegedly infringes upon the patent in suit, and plaintiff further seeks to collect damages for past infringement by defendant.

FINDINGS OF FACT

1) The period from the mid-1950's to the mid-1960's marked a transition in the manufacturing of steel in that the Basic Oxygen Furnace (BOF) began to replace the open hearth method. (R. 35-41.)

2) BOFs were first introduced in the United States in about 1959. (PT 4, No. 120.)

3) European steelmakers had begun making the transition to BOFs of various types prior to the transition made by steelmakers in the United States. (PT 19, Volumes 1 and 2.)

4) On December 11, 1962, plaintiff learned that brick made of Turkish magnesite, burned and tar impregnated, made by

Veitscher Magnesitwerke of Austria (hereinafter Veitsch) had attained 200 "heats" in a Kaldo vessel at Domnarvet, Sweden. Plaintiff was also aware of the fact that the same type brick was reported to have endured more than 800 "heats" in an LD vessel at Linz Donawitz, Germany, earlier that year. Mr. Davies, one of the inventors, was present at that meeting. (PT 152.)

5) Prior to December 20, 1962, plaintiff was aware that a burned, tar impregnated brick, composed of Austrian magnesite, having an Mg0 content of 87%, had endured 92 "heats" in a Kaldo vessel at Domnarvet, Sweden. (PT 152.)

6) During 1962-1964, Sharon Steel, Sharon, Pennsylvania, was in the process of testing refractories for its two 100-ton Kaldo vessels. (DT BR.)

7) From a letter dated March 27, 1963, which was received by plaintiff on April 1, 1963, plaintiff learned that a Kaldo vessel at Oxelösund, Sweden, which was purportedly the same size as the vessels at Sharon Steel, had undergone 111 "heats" without any patching, using a brick called Anker T. (PT 154.)

8) The same person who informed plaintiff of the results of the Anker T test at Oxelösund, Sweden, indicated in his letter of March 27, 1963, that he had sent a piece of the lining, i. e., a fragment of the brick used in the lining, which had endured the 111 "heats" mentioned above. (PT 154.)

9) From October 16, 1962, to April 21, 1963, plaintiff tested some of its various refractories in the 100-ton Kaldo vessels at Sharon Steel, including its 78-62 refractory brick and its 7-63 refractory brick. (DT BR.) Plaintiff later denominated the 78-62 refractory brick as Oxiline B and the 7-63 refractory brick as Oxibak H. (R. 280.) The refractory brick manufactured under the patent in suit were marketed under the Oxiline B and Oxibak H designations. (R. 51-53.)

10) Plaintiff's 78-62 and 7-63 refractory bricks were made from a brickmaking compound designated by plaintiff as 31-62 grain. (R. 341, 343, 381.)

11) Originally, the 31-62 grain, the 78-62 refractory brick, and the 7-63 refractory brick were made under the teachings of plaintiff's U. S. Patent Number 3,141,790. (R. 384; PT 27.)

12) The lining which plaintiff installed on April 21, 1963, at Sharon Steel's 100-ton Kaldo vessel attained 62 "heats", the highest number of "heats" attained by any of plaintiff's products in Sharon's Kaldo vessels. (DT BR.)

13) Plaintiff's 78-62 and 7-63 refractory bricks were excellent refractory bricks for BOFs, probably the best high purity magnesite refractory bricks manufactured in the United States in 1962 and 1963, and they had a modulus of rupture at 2300° F of about 1000 to 1500 psi and 150-260 psi at 2600° F. (PT 100; PT 50; PT 59.)

14) The 31-62 grain was manufactured from a magnesium hydrate slurry supplied to plaintiff at Ludington, Michigan, by Dow Chemical Company. (DT HD.)

15) Plaintiff made two products from Dow's magnesium hydrate, one called 98 grade magnesite and the other called 31-62 grain. The only difference between the two products was that controlled percentages of lime were added to the slurry for the 31-62 grain to maintain a lime/silica (C/S) ratio between 3:1 to 4:1. (DT HD.)

16) Prior to December, 1962, the normal method used by plaintiff to make the lime addition to the magnesium hydrate slurry was that of using lime hydrate. In December, 1962, plaintiff, as an economy measure, began making the lime addition by using hydrated Gibsonburg dolomite rather than the Mississippi hydrated lime. (PT 33, p. 5.)

17) On January 10, 1963, the inventors initiated a study on the effect of adding lime in form of hydrated dolomite instead of lime hydrate in its manufacture of 31-62 grain and the resultant effect upon the physical properties of the 78-62 brick which was made from that grain. (PT 33.)

18) In a laboratory report, dated March 12, 1963, the inventors determined that brick made from the 31-62 grain that had been made with the hydrated dolomite had physical properties which were satisfactory in comparison with the physical properties of 7-63 brick which plaintiff had previously produced with the exception of the fact that the hot strength of the brick made from the new grain at 2300° F was only half that of the 7-63 brick previously made by plaintiff's research center. (PT 33.)

19) The same report indicated that the boron content of 0.3% B2O3 was abnormally high for that type of brick, and the report further indicated that the effect of the boron content on hot strength of the brick manufactured from this grain was being investigated. (PT 33.)

20) Although the report indicated that the cause of the weakness of the brick made from the 31-62 grain to which the lime had been added as hydrated dolomite was unknown, the report indicated that the aim of the research program was to find an explanation for the low hot strength of the brick. (PT 33.)

21) There is no document of record prior to May 28, 1963, which indicates that the inventors conducted any experiments to determine the effect of B2O3 contents which were lower than the normal range of 0.10% to 0.14% which plaintiff had encountered in its products made from the magnesium hydrate it received from Dow Chemical.

22) On April 1-3, 1963, the inventors, Ben Davies and Peter Havranek, attended an engineering meeting in Buffalo, New York, during which time the inventors had a conversation with Doctor William C. Gilpin of Steetley Company, an English company. (PT 155; R. 446-447, 561-567.)

23) Doctor Gilpin informed the inventors that Steetley had managed to obtain samples of the "Ankor T" (sic) brick made by Veitsch that had been successful in the Kaldo vessel at Domnarvet, Sweden, and Doctor Gilpin further related to them that the distinguishing feature of the brick was its "`enormous strength at high temperatures and excellent spalling resistance.'" (PT 155.)

24) Doctor Gilpin informed them that the Anker T was a burned brick made from Turkish magnesite and that it was tar impregnated. He further stated that he did not know the exact source of the Turkish magnesite, but he indicated that "they (presumably Steetley and himself) have been able to make brick similar to `Ankor T' (sic) using dead burned Grecian magnesite with a similar composition to the Turkish." (PT 155.)

25) On April 4, 1963, Ben Davies, one of the inventors, called plaintiff's home office to inquire about the "possible source of magnesite used by the Austrians for use in the manufacture of brick for the Swedish Kaldo vessels" which Doctor Gilpin had informed him of at the meeting in Buffalo, New York. (DT HA; R. 565.)

26) On April 5, 1963, Carl A. Tate, an executive of plaintiff's organization, by letter, responded that:

a. The only magnesite obtainable from Turkey was of a crude variety since there were no dead burning facilities in that country;

b. Crude Grecian magnesite samples which had been received by the British Periclase Company were the closest in composition to the Turkish crude magnesite; and

c. Samples of the dead burned Grecian magnesite were "in your hands at Garber Research Center." (PT 156.)

27) By April 12, 1963, the samples of Grecian dead-burned magnesite which ...