Great Plains Chemical Co. v. Micro Chemical, Inc., Civ. A. No. 80-F-63.
| Decision Date | 30 July 1985 |
| Docket Number | Civ. A. No. 80-F-63. |
| Citation | 652 F. Supp. 1 |
| Parties | GREAT PLAINS CHEMICAL COMPANY, INC., Plaintiff, v. MICRO CHEMICAL, INC., Defendant. |
| Court | U.S. District Court — District of Colorado |
Robert C. Dorr, Burton and Dorr, Denver, Colo., Carter H. Kokjer, Kokjer, Kircher, Bradley, Wharton, Bowman and Johnson, Kansas City, Mo., for plaintiff.
Richard W. Daily, Thomas H. Suddath, Jr., Davis, Graham and Stubbs, Denver, Colo., James S. Leigh, Klarquist, Sparkman, Campbell, Leigh & Winston, Portland, Or., for defendant.
IN THIS ACTION, plaintiff seeks a declaratory judgment regarding the validity of U.S. Patents No. 3,437,075 ('075 patent), 3,498,311 ('311 patent), and 3,670,923 ('923 patent). Defendant, owner of the patents, counterclaimed, asserting plaintiff infringed the patents. Upon consideration of the evidence presented at trial, we are of the view the patents are valid and infringed. The following encompasses the Court's Findings of Fact and Conclusions of Law.
The patented equipment involved in this case was invented by Roland J. Hawes. The Hawes patents embody a method and apparatus enabling a feedlot operator to custom formulate different feed supplement mixtures from selected feed supplement additives for each batch of feed. The additives include vitamins, minerals, proteins, antibiotics, medicines, etc. This method allows for mixing of the micro-in-gredients just prior to each batch of feed being delivered to the livestock. It avoids the previous disadvantages of the commercial premixes.
The subject matter of the '075 patent is a system and method for adding micro-ingredient feed additive supplements to the feed or drinking water of livestock and poultry. Prior to the '075 method, the conventional way of supplying micro-ingredient feed additives to these animals was to premix selected additives in dry concentrate form. Typically, the additive premix was manufactured by commercial feed mills. The premixes were either mixed with a feed ration at the commercial mill or bagged separately. The feedlots purchased the mixes and stored them until ready for use. If bagged, the premix was mixed with the feed ration at the feedlot or fed separately to the animals.
The premix method presented several problems. Some incompatible additives could not be premixed with each other even in the presence of a filler and, therefore, had to be manufactured, handled and stored separately. It was difficult to ensure that each animal received a desired formulation and dosage of specific additives. The ingredients often lost potency due to chemical breakdown or spoilage. Handling and storing the premixes in the large quantities required created expense and inconvenience.
The '075 patent solved these problems by creating a method whereby the additives could be stored separately at the feedlot. Then, through the process of the Hawes equipment, the micro-ingredients could be measured and then dispensed separately but simultaneously. The additives are mixed with a liquid carrier and delivered directly to the animals. The apparatus minimizes chemical interaction between the additives because the additives are stored separately in concentrate form and are not intermixed until added to a diluting flow of carrier fluid shortly before delivery to the feed ration. The equipment allows the feedlot operator to custom formulate additive combinations to meet the various needs of the livestock.
The subject matter of the '311 patent is an apparatus similar to the appartus in the '075 patent. The equipment was the first capable of dispensing separately but simultaneously both dry and liquid additive concentrates. It also handled both soluble and insoluble additives. Before this invention, others had tried dispensing premixed liquid concentrate additive solutions through livestock drinking water systems. Several problems arose, however. Biochemical additives lost potency when placed in concentrated solutions of mineral additives. Including soluble additives or additives of limited solubility in the slurry proved to be impracticable.
The subject matter of the '923 patent is an improved control system for a machine such as shown in the '075 and '311 patents which meters and dispenses multiple ingredients. This allowed technically untrained operators to adjust and change formulations accurately. A preprogrammed punch plate is used to achieve the desired concentrations and dispersals of the additives. The patent also added a flush system to ensure later batches would not be contaminated by any residual material left in the apparatus.
In 1982, this case was tried before a jury. The jury found the patents to be valid but could not reach a verdict on the issue of infringement. The verdict on validity was a nullity because of the inability of the jury to reach an agreement regarding infringement. A new trial was ordered as a result. The previous trial was before another federal judge. By random draw, the case was reassigned to this judge for trial de novo.
At the time of the Hawes patents, those involved with the feedlot business had extensive knowledge of the problems of feed and additives. Yet, they had a relatively low level of technical or mechanical skill. This is the level of ordinary skill in the pertinent art to be considered.
The pertinent art to which the Hawes patents and accused equipment relate is the art of dispensing and delivering micro-ingredient feed supplements to livestock. Although the dispensing of dry or liquid additives into a fluent carrier for mixing of the ingredients with the carrier and delivery to a destination for consumption was not new at the effective filing date of the '075 patent, July 15, 1965, it was new to the livestock business.
The machines made in accordance with the Hawes patents have been commercially successful. They have continued to grow in popularity after defendant's acquisition of the business to the extent that over 150 machines are presently leased out to major cattle feedlots.
At the time the inventions of the Hawes patents were made, there was a long standing problem with the then existing systems for handling and delivering feed additives to livestock and other domesticated animals. Therefore, a long felt need for the kind of apparatus invented by Hawes existed, and others had failed to develop solutions.
Plaintiff raises an obviousness defense in challenging the validity of the '075 patent. Plaintiff relies principally on two references to support its obviousness defense, the Callahan Patent, 2,802,599 (plaintiff's exhibit 19) and a Jordan Publication (plaintiff's exhibit 35).
The Callahan patent, issued August 13, 1937, discloses a machine and method for making and vending beverages, such as coffee. Water is introduced into a mixing vessel and, while it is flowing through, predetermined amounts of dry ingredients, for example coffee or sugar are metered separately and simultaneously into the flow. No indication from the patent is made as to whether intermixing of the ingredients occurs before they are dissolved in the hot water. The patent does not claim the method of simultaneous dispensing is necessary to the operation of the machine. It is questionable whether a person of ordinary skill in the art of delivering micro-ingredient additives to livestock would look to Callahan or other references in the beverage vending area to solve his problems. Such art is far removed from the additive delivering art.
The Jordan publication does not relate to micro-ingredient feed additives at all. It discloses only a system for pre-blending bulk granular or liquid materials, such as livestock feeds, as might occur in a commercial feed mill. One portion of the publication shows a system for premixing dry livestock feeds on a conveyer belt. Each metering device is started and stopped sequentially, not simultaneously.
Neither Jordan nor Callahan describes storing separately quantities of feed additives in concentrated form, directing a portion of a fluent carrier flow to a location for receiving additives, merging the additive bearing portion of the flow with the remaining flow or directing the total flow to the receiving station. In addition, Jordan does not teach or suggest the use of a fluent carrier for any purpose. Callahan and Jordan, taken separately or together do not teach or suggest the entire combination of claim 12, the first challenged claim.
As to claim 14, neither the Callahan nor the Jordan information teaches or suggests the separate storage without intermixing of multiple additive supplements in concentrate form, the provision of a quantity of livestock consumptive carrier material in fluent form, nor the separate but simultaneous measuring of predetermined amounts of additive concentrates and dispensing the same separately but simultaneously into a flow of fluent carrier. In addition, Jordan does not teach or suggest the step of measuring separately but simultaneously and dispensing separately but simultaneously any material toward a flow of fluent carrier. The Jordan materials are premixed and do not use a fluent carrier as required in claims 12 and 14. Callahan and Jordan, taken separately or together, do not teach or suggest the combination, as a whole, recited by claim 14. Therefore, such references also do not teach or suggest the entire combination of claims 15, 17 and 18.
In contesting the validity of the '311 patent, plaintiff relies principally on the disclosure in the abandoned parent application of the '075 patent (plaintiff's exhibit 13), the Jordan publication (plaintiff's exhibit 35), the Callahan patent (plaintiff's exhibit 19), and Bowman U.S. Patent No. 2,462,019 (plaintiff's exhibit 17) in challenging the validity of claims 2, 3 and 5 of the '311 patent. The patent was issued on March 3, 1970.
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