Kalman v. Kimberly-Clark Corp.
| Decision Date | 17 August 1982 |
| Docket Number | Civ. A. No. 78-C-721. |
| Citation | 561 F. Supp. 628 |
| Parties | Peter Gabor KALMAN, Plaintiff, v. KIMBERLY-CLARK CORPORATION, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Robert Clemency, Michael, Best & Friedrich, Milwaukee, Wis., for plaintiff.
Michael J. McGovern, Quarles & Brady, Milwaukee, Wis., Leonard Santisi, Curtis, Morris & Safford, New York City, for defendant.
DECISION and ORDER
A four-day court trial in this patent validity-infringement case ended on April 2, 1982. The case was very ably presented by lead counsel for the parties, I. Irving Silverman for the plaintiff and Leonard J. Santisi for the defendant. The following constitutes my findings of fact and conclusions of law.
There are two issues in the case. One concerns the validity of the patent in suit, U.S. Patent 3,471,017. If it is valid, the second question is whether the accused Berlyn continuous filters model nos. CF3539 and CF4549 owned and used by the Kimberly-Clark Corporation infringe the patent's process claims numbered 1, 3, and 15 and its apparatus claims numbered 18, 20, 23, and 25.
The plaintiff Peter Gabor Kalman is a citizen of the United Kingdom. He resides in London, England. Kalman is the patentee and owner of the patent in suit. His corporation, Process Developments Ltd. of London, manufactures and sells filter devices constructed according to the teachings of the patent. Kalman has also licensed Mobil Oil Corporation to make and use filter devices under the patent in the United States. The filter devices sold in the United States under the patent are sold under the trademark "Autoscreen."
The defendant Kimberly-Clark Corporation of Neenah, Wisconsin manufactures, among other things, products from heat-softenable plastics which it obtains in bulk, feeds to apparatus which soften and extrude it through dies, spinnerets or the like. The heat softened plastic is filtered during the process. The end product is sheet material made of plastic.
The patent in suit describes a filtering process and apparatus. It was issued on October 7, 1969 to Mr. Kalman based on an application filed June 20, 1967. The date of the invention is February 21, 1967, the filing date of Mr. Kalman's corresponding British patent application.
The Kalman patent has two independent claims, claims 1 and 18, the first directed to the method of the invention and the second to the apparatus of the invention. The invention provides a means of filtering molten plastic to remove contaminants while the plastic is being forced through a central bore toward a die or mold. The gist of the invention is the provision of a continuous filter device in the form of a "band or ribbon" for heat-softened flowing plastic.
The invention operates when a length of filter is passed across the flow of plastic. The filter is incrementally moved to bring fresh filter areas into the flow path and remove clogged filter areas from the path. Controlled temperature heat exchangers are positioned at the inlet and outlet ports through which the filter passes. The heat exchangers cause the formation of sealing plugs of rigid or semi-rigid plastic which always surround the filter ends and move with the filter. The plugs are continuously self-maintained or re-formed from the molten plastic to maintain seals as the filter moves. They prevent leakage without the need for high pressure sealing or extremely close tolerances during the operation of the device.
In the Kalman patent the filter is a roll of unsupported filter screening. Backup support for the screening is provided by a fixed breaker plate that is built into the enclosure and through which the filtered plastic passes after it has passed through the filter.
The Kalman patent discloses examples of the means by which the filter is moved continuously into and through the inlet port, across the stream of flowing plastics, and into and through the outlet port without stopping the flow of plastics and without stopping the operation of the extruder. One of these procedures involves making the outlet port larger than the inlet port. As a consequence, the rigid or semi-rigid plug of plastic material in the outlet port is under greater hydrostatic pressure than the plug at the inlet port. Because the sealing plugs are connected to the filter, the pressure causes the plugs and filter to move together toward the outlet port. The movement slowly carries the sealing plug of the inlet port into the enclosure and expels the other one. The filter gradually moves across the stream of flowing plastics while the plastic is being filtered through the screening. The movement is accomplished without significant leakage because the sealing plugs are always being formed and maintained.
Another procedure for moving the filter ribbon involves increasing the forward movement of the filter by pulling at the emerging end of the ribbon with a direct external force. Similarly, the forwarding movement of the filter ribbon may be retarded by the application of a direct force to the ribbon at the inlet port.
Prior to the design and construction of the Berlyn devices of the type owned by the defendant, the Autoscreen devices were the only continuous filter devices available on the market.
The file history of the Kalman patent indicates no prosecution of the claims other than a minor amendment by the Examiner. With the minor amendment, the claims were allowed as filed. The application upon which the patent issued was filed with 43 claims including the independent process claim 1 and the independent apparatus claim 18. None of the claims were rejected by the Patent Office. No amendments to the application were made to distinguish the invention from an prior art. The Patent Office cited five U.S. patents in the Kalman patent application, but applied no art to the claims.
The language "band or ribbon" was never discussed or argued between the applicant and the Examiner, nor was there any discussion of the use of hydrostatic pressure for moving the filter or of the difference in size between the inlet and outlet ports. The Patent Office did not object to any of the claims in suit which do not include references to the movement of the filter by internal pressure or to ports of different sizes.
The Examiner's amendment inserted the phrase "heat-softened" before "substance," inserted the word "temperature" before "condition" and changed the word "slot" to the word "port" in Claim 1. Claim 18 was amended to insert the phrase "for filtering a heat-softened substance" after "device," to change "can be passed and" to "is passed and can be ...," and to insert after "substance" the phrase "and means to provide temperature conditions at said ports to form said plugs." The Examiner's amendment includes the statement, "The above amendments have been authorized by applicant's attorney, Mr. Leo Rosetta, via a telephone interview on January 30, 1969." The application was issued following the amendment. The amendments were made to clarify the claims, not to distinguish them from any prior art references.
The accused devices, Berlyn Continuous Filters Model numbers CF3539 and CF4549 were manufactured by the Berlyn Corporation of Worcester, Massachusetts, and sold to the defendant Kimberly-Clark in 1977. They were in use prior to the filing of this lawsuit and during the pendency of the suit.
The Berlyn screen changer devices operate without stopping the extruder and without producing great variations in the back pressure of the plastic in the extruder. The accused devices have heated enclosures connected between the extruder and the dies. The enclosures have a slot or channel transverse of the plastic flow that intercepts the flow, an inlet port at one end of the channel, and an outlet port at the other end.
Each of the accused devices has a string of three trays in the channel at all times and the trays are moved from the inlet port to the outlet port under the influence of an external force, a hydraulic ram, pushing the string through the channel in small increments. Each tray is divided into small compartments separated by narrow dividers. A small rectangle of filter screening material is inserted into each of the compartments before the tray is introduced into the channel. Each tray is coupled to its neighbor so that all trays in the channel move simultaneously during the filtering process. The trays have a number of perforations which are larger than the interstices of the screen elements.
A stream of air at the ports controls the temperature so that a solidified sealing plug is maintained and re-formed as the string of trays moves through the channel. The solidified plugs surround the trays at the inlet and outlet ports and prevent the plastic from leaking out of the slots.
In a stipulation filed June 30, 1980, the defendant agreed that claims 1, 3, 15, 18, 20, 23, and 25 of the Kalman patent read on the accused Berlyn devices but for the description of the filter as a "band or ribbon" and "in the form of a band or ribbon." Based in part on the stipulation, plaintiff moved for summary judgment on both issues, validity and infringement. In a decision and order filed November 5, 1981, and hereby incorporated by reference into this decision, I determined that the filters used in the accused Berlyn devices were equivalents of the band or ribbon described in the patent. I also determined, however, that defendant had, although somewhat belatedly, inserted another issue into the lawsuit, thus preventing summary judgment. That issue was whether the claims of the Kalman patent must be read as limited to a method of moving the filter across the plastic by differential pressure acting on the plugs formed in the inlet and outlet ports. If so, defendant argued, because the accused devices depend on an external hydraulic ram, there could be no infringement. Defendant also argued,...
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