Inject-O-Meter Mfg. Co. v. NORTH PLAINS FERTILIZER & C., INC.

• Court: U.S. District Court — Northern District of Texas
• Citation: Inject-O-Meter Mfg. Co. v. NORTH PLAINS FERTILIZER & C., INC., 308 F. Supp. 538 (N.D. Tex. 1970)
• Decision Date: 21 January 1970
• Docket Number: Civ. A. No. 2-522,2-606.
• Parties: INJECT-O-METER MANUFACTURING COMPANY, Inc., Plaintiff, v. NORTH PLAINS FERTILIZER AND CHEMICAL, INC., Defendant. INJECT-O-METER MANUFACTURING COMPANY, Inc., Plaintiff, v. NORTH PLAINS FERTILIZER AND CHEMICAL, INC., Defendant.

308 F. Supp. 538

INJECT-O-METER MANUFACTURING COMPANY, Inc., Plaintiff, v. NORTH PLAINS FERTILIZER AND CHEMICAL, INC., Defendant.

INJECT-O-METER MANUFACTURING COMPANY, Inc., Plaintiff, v. NORTH PLAINS FERTILIZER AND CHEMICAL, INC., Defendant.

Civ. A. Nos. 2-522, 2-606.

United States District Court N. D. Texas, Amarillo Division.

January 21, 1970.

Elsie Brown Silverman, Amarillo, Tex., for plaintiff.

Hugh T. Lyle, Dumas, Tex., Joe E. Edwards, Vinson, Elkins, Searls & Connally, Houston, Tex., for defendant.

MEMORANDUM OPINION

WOODWARD, District Judge.

In these actions, which arise under the patent laws of the United States, Plaintiff sues Defendant for infringement of two separate but related patents. Jurisdiction of the parties and subject matter of these disputes resides in the Court under the provisions of 28 United States Code § 1338. The two patents involved herein describe a device and a method that can be utilized to inject chemical fertilizer solutions into a farm irrigation system. In Civil Action No. 2-522, Plaintiff alleges infringement of United States Letters Patent No. 3,326,232 which was issued on June 20, 1967, to Otis C. Stamps and David W. Neikirk for an invention of a fertilizing apparatus entitled Fertilizer Application and Apparatus Therefor. This patent will be referred to as the "apparatus" patent. In Civil Action No. 2-606, Plaintiff alleges infringement of United States Letters Patent No. 3,375,976, which was issued on April 2, 1968, to Otis C. Stamps and David W. Neikirk for an invention of a process of applying fertilizer through irrigation water which is entitled Fertilizer Application Process. This patent will be referred to as the "process" patent. Plaintiff in these two causes is the assignee of both patents and of all rights of recovery for past infringements. On March 4, 1969, the Court entered an order consolidating the two causes into one action since they involved related patents and alleged infringement by the same Defendant. Upon completion of discovery, Defendant moved for summary judgment in both causes and the Court heard oral argument on the motions on December 16, 1969. After considering the arguments of counsel, the pleadings, answers to interrogatories, depositions, and briefs on file, the Court granted the motions for summary judgment on December 30, 1969, and now files this Memorandum Opinion in connection therewith:

I. THE APPARATUS PATENT

The apparatus patent discloses a device for injecting liquid fertilizer into a water line. The apparatus includes a gear pump, a by-pass line extending from the discharge side of the pump to a liquid fertilizer tank, an adjustable pressure relief valve mounted in said by-pass line, a flowmeter connected in the discharge line extending from the pump to the water line, and an adjustable throttle control valve connected to the outlet side of the flowmeter in the discharge line. In the patent, the operation of the apparatus is described. The patent also explains that the volume of fertilizer solution which is injected into the water line is controlled by manipulation of the adjustable pressure relief valve and the adjustable throttle control valve.

At the hearing on December 16, 1969, counsel for Plaintiff admitted that the device Defendant presently manufactures does not infringe Plaintiff's apparatus patent. (p. 35, Transcript of Hearing). Defendant's apparatus consists of a proportioning pump-check valve combination device for injecting a liquid fertilizer into a water line. In Defendant's apparatus, the volume of liquid fertilizer which is injected is controlled by the proportioning pump. The apparatus does not employ a by-pass line between the pump discharge and fertilizer tank and also does not include an adjustable throttle control valve in the discharge line extending from the pump to the water line. Although Plaintiff admits that the above described apparatus presently manufactured by Defendant does not infringe Plaintiff's patent, Plaintiff contends that Defendant manufactured devices in 1966 which did infringe the apparatus patent and which were used after the issuance of the patent in June, 1967. Plaintiff argues as follows:

1. That Defendant purchased in early April, 1966, from Plaintiff an apparatus which is described and claimed in the apparatus patent.

2. That Defendant dismantled this purchased device in late April and then, subsequently, purchased 12 flowmeters and 12 gear pumps.

3. That, since Defendant dismantled Plaintiff's apparatus, Defendant must have intended to copy Plaintiff's apparatus and that, since Defendant purchased 12 flowmeters and 12 gear pumps, Defendant must have been acquiring the necessary component parts to manufacture copies of Plaintiff's apparatus.

4. That, since Plaintiff's apparatus can be used in normal operation for over two years it is reasonable to assume that the devices Defendant allegedly manufactured were in use when the apparatus patent was issued.

5. That, consequently, there was an infringement of the apparatus patent.

Plaintiff's argument presents a very constrained view of the evidence and is not warranted by the record in this case. Although Defendant admits that it purchased one apparatus from Plaintiff, in April, 1966, and dismantled the apparatus in an attempt to discover why it would not work, Defendant does not admit or even imply that it ever manufactured a device which was a copy of Plaintiff's apparatus or that it used Plaintiff's apparatus for any purpose other than experimentation. (McNeill deposition of October 7, 1969, pages 4-6, 17-18, and 25). Defendant also admits that it purchased 12 flowmeters and 12 gear pumps but further states that these purchases were likewise used for experimentation and in connection with the device Defendant purchased from Plaintiff. (McNeill deposition of October 7, 1969, pages 16-24). It is simply clear, especially in light of the deposition of Troy McNeill, who is President of Defendant Corporation, that the apparatus purchased from Plaintiff, the flowmeters, and gear pumps, were used only for purposes of experimentation, "to find what would work" in Defendant's operation (McNeill deposition of October 7, 1969, pages 18-19). Defendant found that Plaintiff's apparatus would not meet its needs and consequently dumped everything in the scrap pile. (McNeill deposition of October 7, 1969, pages 19-21). Mr. McNeill further stated that Defendant never sold any pumps except the Hills-McCanna pump which was purchased in 1966, which is still being used by Defendant and which admittedly is not an infringement. (McNeill deposition of October 7, 1969, pages 14 and 17). Examined in its entirety, the deposition of Troy McNeill refutes any inference that Defendant used Plaintiff's apparatus after the issuance of the patent on June 20, 1967. Moreover, there is no evidence in the record before the Court to contradict McNeill's statements. In fact, neither Mr. Stamps nor Mr. Neikirk, co-patentees and officers of Plaintiff Corporation, ever saw an apparatus similar to their own manufactured by Defendant after April, 1966, over one year before issuance of the apparatus patent in June, 1967. (Stamps deposition of October 7, 1969, page 24 and Neikirk deposition of January 24, 1969, pages 182-187). In this regard, the law is well settled that there could be no infringement before a patent is issued. Coakwell v. United States, 372 F.2d 508, 178 Ct. Cl. 654 (1967).

In the light of all the evidence, it appears to the Court that Plaintiff's claims as to an infringement of its apparatus patent are much too speculative to raise any genuine issue of a material fact; therefore, Defendant's motion for summary judgment with reference to the apparatus infringement claim is granted since no infringement was substantiated.

II. THE PROCESS PATENT

The process patent contains the following claims which Plaintiff argues are being infringed by Defendant:

"1. A process for treating land with liquid fertilizer which comprises the steps of

(a) Pressurizing the liquid fertilizer and bringing it to a first, high, pressure level,

(b) Passing the pressured liquid fertilizer through an adjustable orifice at a predetermined rate and thereby lowering the pressure of said liquid to a second, lower, pressure level,

(c) Concurrently raising water from below the ground at a first site and raising its pressure to a water pressure within a range having a maximum lower than the value of said second pressure level, said water pressure of said water within said range being a varying pressure,

(d) Passing the liquid fertilizer at such second, lower, level of pressure into said stream of water at said range of pressure, and mixing the liquid fertilizer and the water, and

(e) Passing the admixture to a liquid distributor located on said land at a distance from said first site and distributing said liquid fertilizer on said land.

"2. Process as in claim 1 wherein the pressure of said liquid fertilizer is lowered at least 20 pounds per square inch from said first to said second pressure level."

Plaintiff's claim of a process infringement is based upon the teaching in the process patent that there should be a deliberate or significant pressure drop through an adjustable orifice before the fertilizer solution goes into...