Henry J. Kaiser Company v. McLouth Steel Corp.
| Citation | 257 F. Supp. 372 |
| Decision Date | 06 July 1966 |
| Docket Number | Civ. A. No. 16900. |
| Parties | HENRY J. KAISER COMPANY, Vereinigte Oesterreichische Eisun-Und Stahlwerke Aktiengesellschaft, and Brassert Oxygen Technik AG., Plaintiffs, v. McLOUTH STEEL CORPORATION, |
| Court | U.S. District Court — Western District of Michigan |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
William H. Webb, John M. Webb, David C. Bruening, Webb, Burden, Robinson & Webb, Pittsburgh, Pa., John A. Dienner, Edward C. Grelle, Brown, Jackson, Boettcher & Dienner, Chicago, Ill., George E. Brand, Jr., Detroit, Mich., for plaintiffs.
John Vaughan Groner, Ronald F. Ball, Donald E. Degling, Fish, Richardson & Neave, New York City, William B. Cudlip, T. Donald Wade, Dickinson, Wright, McKean & Cudlip, Detroit, Mich., for defendant.
TABLE OF CONTENTS
I. BACKGROUND OF THIS LITIGATION
A. Steelmaking prior to the tests at
Linz, Austria, in 1949
B. The tests at Linz and their results
C. The history of the U. S. patent application
D. The patent in suit (Suess, et al
No. 2,800,631)
E. The licensing structure of the patent
in suit
F. The history of defendant's operations
G. The issues in this case
II. THE QUESTION OF VALIDITY
A. Anticipation
(1) The Schwarz patent
(2) The Miles patent
(3) The Potts patent
(4) Conclusion
B. Nonobviousness
(1) The prior art and the invention
by the patentees
(2) The meaning of "the avoidance
of deep penetration"
(3) Nonobviousness of the invention
(4) Nonobviousness of the claims
(5) Conclusion
C. Inventorship
(1) The teachings of Dr. Durrer
and Dr. Hellbruegge and the
patentees
(2) The disclosures of Dr. Durrer
and Dr. Hellbruegge to the patentees
(3) Comparison of the tests at Gerlafingen
Switzerland, and Linz
Austria
(4) Statements by Dr. Durrer and
Dr. Hellbruegge inconsistent
with inventorship
(5) Conclusion
D. Compliance of the specification
with § 112
E. Compliance of the claims with
§ 112
(1) The claims do not measure the
invention
(2) The claims are not supported
by the specification
(a) The avoidance of "material
agitation of the bath by the
oxygen stream"
(b) Chemical reactions "producing
a circulatory movement in
the molten metal"
(c) Blowing "below the surface"
(3) The claims cover prior art
(4) Conclusion on claims under §
112
III. CONCLUSION
This is an action for infringement of patent No. 2,800,631 involving a process of making steel by jetting high purity oxygen downwardly onto a bath of molten pig iron. The patent was issued July 23, 1957, to four Austrian steelmakers, Drs. Theodor Eduard Suess, Herbert Trenkler, Hubert Hauttmann and Rudolf Rinesch, as joint inventors, on the basis of experimentation with the use of pure oxygen in steelmaking dating back to June of 1949. At that time, all four men were employed by plaintiff Vereinigte Oesterreichische Eisen-und Stahlwerke Aktiengesellschaft (hereinafter called "VOEST"), a steel company owned by the Austrian Government having its main factory at Linz, Austria. VOEST is presently owner of the patent in suit and all rights pertaining thereto, by virtue of assignment from the patentees. Other plaintiffs in this litigation are Brassert Oxygen Technik AG., (hereinafter called "BOT"), a Swiss corporation which is the exclusive world-wide licensing firm for the patent in suit; and Henry J. Kaiser Company (hereinafter called "Kaiser"), a Nevada corporation which is the exclusive licensing agent in the United States for the patent.
Defendant in this case is McLouth Steel Corporation (hereinafter called "McLouth"), a Michigan corporation having a place of business at Trenton, Michigan, where a steel plant is located, whose operations are alleged to infringe the patent in suit.
The oxygen steelmaking process at issue in this litigation has demonstrated in recent years undoubted advantages over older methods of steelmaking, including reduction of capital and operating costs, increase of production rates, and improvement in quality of the steel produced. Therefore, perfection of the process has resulted in its large-scale adoption in the United States and throughout the world. Defendant McLouth has admitted that the new oxygen steelmaking process is "`a revolutionary method of making high quality steel." (PX 96A; R. 1107, 1310.) Additionally, the process has been characterized by the President of Jones & Laughlin Steel Company as "the only major technological breakthrough at the ingot level in the steel industry since before the turn of the century." (PX 92-7; R. 1233-1234.)
Basically, plaintiffs contend that the four patentees were joint inventors of this oxygen steelmaking process at Linz, Austria, in June of 1949, and that the process is the subject matter of the patent in suit, allegedly infringed by McLouth. Defendant denies these contentions and also asserts a defense of patent misuse.
A brief discussion of the background of this litigation may serve to clarify the issues and also to provide a general perspective for the more detailed analysis of each issue to follow.*
Steel is simply iron containing a very small percentage of other elements such as carbon, phosphorus, manganese, silicon and sulphur. Iron is found in nature in oxide forms, mixed with impurities. Thus the process of steelmaking involves reduction of iron oxide to pure iron and the removal of impurities to acceptable levels for the quality of steel desired. The blast furnace, an invention probably of Chinese origin and introduced in Europe in the sixteenth century, performs the function of reducing iron ore to relatively pure iron, but fails to separate other elements from the iron sufficiently to produce steel. In fact, the iron produced by the blast furnace, known as pig iron, acquires roughly four per cent carbon as a result of the blast furnace operation as residue from coke used in the operation to reduce iron oxide. (R. 210.) Therefore, further refining of the molten pig iron produced by the blast furnace is required to make steel. The purpose of such refining is to lower the carbon, silicon, phosphorus, manganese and sulphur content of the pig iron to desirable levels, preferably without adding any significant amounts of oxygen or nitrogen to the final steel as a result of the refining process. For example, excessive amounts of carbon, phosphorus and nitrogen cause the steel to be too brittle for many purposes. Too much sulphur has the same effect and also tends to cause surface defects in the steel produced. (R. 233-235.) On the other hand, steel with a too low manganese content will not roll or forge properly. (R. 227-228.) In the process of refining pig iron, the elements of carbon, silicon, manganese and phosphorus combine with oxygen to form oxides which go into a slag layer on top of the metal bath or into the air in the form of carbon monoxide and carbon dioxide. Essentially, the problem of steelmaking is to control the refining process so as to remove sufficient amounts of all the impurities, although the various reactions do not necessarily occur at the same time.
The refining of pig iron into steel may be accomplished by any of several processes. The oldest of these, the Bessemer process, was developed in the 1850's and involves blowing air into a molten bath of pig iron from below through tuyeres in the bottom of a converter. The original Bessemer process, which used a so-called acid refractory lined with material containing silica, an acidic oxide, has proved unsatisfactory in several respects. In the first place, phosphorus is not removed, because the basic slag required for phosphorus removal cannot be used with an acid refractory. Thus the acid Bessemer process can only be used to refine pig iron which already contains a sufficiently low phosphorus content. The relative rarity of such pig iron places a serious restriction on the usefulness of the acid Bessemer process. Further, sulphur is not removed in the acid Bessemer process for the same reason. Additionally, the blowing of air into the bath causes an objectionable amount of nitrogen from the air to remain in the steel. Attempts to solve the nitrogen problem in the 1940's by blowing pure oxygen instead of air through the bottom were unsuccessful because the greater heat of chemical reactions caused by pure oxygen immediately resulted in severe refractory damage.
The Thomas process, also known as the basic Bessemer process, was originated in 1879. This process requires the use of a basic lining, which permits the use of a basic slag capable of removing phosphorus and sulphur from the pig iron. However, the process makes steel which is unsatisfactory for many purposes because of an excessive nitrogen content in the steel produced. In the Thomas process, a so-called afterblow is required to remove phosphorus from the metal bath, since almost no phosphorus is removed during the main blow when the removal of carbon, silicon and manganese takes place. Phosphorus removal requires iron oxide in the slag, but in the Thomas process, insufficient iron oxide forms in the slag to remove phosphorus until the time of the afterblow.
The principal method for refining pig iron into steel since the 1880's has been the open hearth process, which involves heating large quantities of pig iron in a furnace by means of fuel oil blown onto the surface of the bath. The open hearth process successfully removes objectionable amounts of carbon, silicon, phosphorus, manganese and sulphur from the pig iron without at the same time injecting excessive nitrogen or oxygen into the steel produced. In 1953, approximately 89% of...
To continue reading
Request your trial
-
Kaiser Industries Corporation v. McLouth Steel Corp.
...as required by 35 U.S.C. § 112 and for the further reason that the claims covered the prior art.1a Henry J. Kaiser Co. v. McLouth Steel Corp., 257 F.Supp. 372 (D.C.Mich.1966). From that judgment the Appellants have perfected the instant appeal contesting the Court's rulings covering the cla......
-
Kaiser Industries Corp. v. Jones & Laughlin Steel Corp.
...for the defendant based on collateral estoppel. 1 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971).2 Henry J. Kaiser Co. v. McLouth Steel Corp., 257 F.Supp. 372 (E.D.Mich.1966), aff'd sub nom. Kaiser Industries Corp. v. McLouth Steel Corp., 400 F.2d 36 (6th Cir. 1968), cert. denied, 393 U......
-
Diamond International Corporation v. Walterhoefer
...aff'd per curiam 4 Cir. 1964, 327 F.2d 497, cert. den. 1964, 379 U.S. 826, 85 S.Ct. 53, 13 L.Ed.2d 36; and Henry J. Kaiser Co. v. McLouth Steel Corp., D.Mich.1966, 257 F.Supp. 372, is misplaced. These were process patents in which the omission of an indispensable step from a claim would nec......
-
Lundy Elec. & Sys., Inc. v. Optical Recognition Sys., Inc.
...of further experiment itself of an inventive nature" then the Patent is not insufficiently disclosed. Henry J. Kaiser Co. v. McLouth Steel Co., 257 F.Supp. 372 (E. D.Mich.1966), citing National Battery Co. v. Richardson Co., 63 F.2d 289, 293 (6th Cir. 1933); Sun Ray Gas Corp. v. Bellows-Cla......