Ralston Purina Co. v. Gen. Foods Corp.

• Decision Date: 26 May 1971
• Docket Number: No. 20011.,20011.
• Parties: RALSTON PURINA COMPANY, Plaintiff-Appellee, v. GENERAL FOODS CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

442 F.2d 389 (1971)

RALSTON PURINA COMPANY, Plaintiff-Appellee, v. GENERAL FOODS CORPORATION, Defendant-Appellant.

No. 20011.

United States Court of Appeals, Eighth Circuit.

May 26, 1971.

Richard E. Cornwell, Wilmington, Del., Armstrong, Teasdale, Kramer & Vaughan, St. Louis, Mo., for defendant-appellant; Rudolf E. Hutz, James M. Mulligan, Jr., Connolly, Bove & Lodge, Wilmington, Del., Michael J. Quillinan, General Foods Corporation, White Plains, N. Y., of counsel.

Peter P. Price, Grand Rapids, Mich., Frederick H. Mayer, Cook, Murphy, Lance & Mayer, St. Louis, Mo., for plaintiff-appellee; Richard C. Cooper, Randall G. Litton, Price, Heneveld, Huizenga & Cooper, Grand Rapids, Mich., of counsel.

Before JOHNSEN, VOGEL and ROSS, Circuit Judges.

PER CURIAM.

This appeal is from the District Court's ruling in a declaratory judgment action that patent No. 3,047,395 (the Rusoff patent) owned by appellant, General Foods, was invalid and unenforceable and, even if valid, not infringed by the product manufactured or process employed by appellee, Ralston Purina, in the production of its "Chuck Wagon" dog food.

Generally, the patent seeks to protect a product simulating quality meat cuts in appearance and texture. The product is made out of proteinaceous material. Besides the product the patent also attempts to protect the particular process by which this meat-like simulation is achieved. According to the process claims, the protein material which is substantially undenatured, finely divided and hydrated, is rapidly heated (a time span of less than five minutes) to a temperature of 300°-400° F. The moisture content of the material according to the claims should be brought to 50-80%. As it is heated the material is continuously agitated (preferably 30-500 r.p. m.) in order to coagulate and orient it. Afterwards it is rapidly cooled to a temperature of less than 200° F. allegedly to preserve the texture of the mass which should be fibrous and sinuous.

The only patent cited in the Rusoff patent application was the Anson patent (No. 2,830,902, issued April 15, 1958). The presumption of validity normally afforded to a patent is weakened, if not completely destroyed, by proof of pertinent prior non-considered art. American Infra-Red Radiant Co. v. Lambert Industries, Inc., 8 Cir., 1966, 360 F.2d 977, 989, cert. denied 385 U.S. 920, 87 S.Ct. 233, 17 L.Ed.2d 144. Such is the case here.

The Boyer patent (No. 2,682,466, issued June 29, 1954), not cited in Rusoff, basically claims a "meat-like product comprising oriented edible fibers extruded from a mass of natural protein." These fibers are bound together to resemble pork, chicken, beef, and other meats. Other uncited patents in existence at the time of the Rusoff invention included: (1) The Norman patent (No. 2,165,721, issued July 11, 1939) which claims a process whereby raw blood is agitated and the mass injected with steam to raise its temperature. The mass is sealed in a can and heated. The District Court found that the end product was a mass "resembling meat"; (2) the Kellogg patent (No. 670,283, issued March 19, 1901) teaches the production of a fibrous meat-like substance after vegetable ingredients are mixed and heated for one to three hours; (3) the Wrenshall patent (No. 2,560,621, issued July 17, 1951) claims a product which has a "meat-like character" and a "comminuted meat-like texture". The Wrenshall process involves the heating at a temperature between 200° and 400° F. of an aqueous substance until it coagulates; (4) the Meyer patent (No. 2,631,111, issued March 10, 1953) provides a process whereby the protein content of corn gluten is increased by injecting steam pressure to create temperatures from 260° to 350° F.

The District Court ruled that these prior patents taught all that was attempted to be protected by the Rusoff claims. Thus, it concluded that Rusoff was void because the use of these prior advances to achieve the Rusoff result and the result itself were obvious to one skilled in the art at the time of invention. In reviewing this determination by the District Court we will, as we have traditionally, give considerable weight to its factual determinations underlying the decision of obviousness even though that issue is one of law which we shall rule on ourselves. Greening Nursey Company v. J and R Tool and Manufacturing Company, 8 Cir., 1967, 376 F.2d 738, 742. Findings of fact in patent cases are not to be set aside unless clearly erroneous under Federal Rule of Civil Procedure 52(a), Rota-Carb Corporation v. Frye Manufacturing Company, 8 Cir., 1963, 313 F.2d 443, 444; Collins v. Owen, 8 Cir., 1962, 310 F.2d 884, 887, but Courts of Appeals are not bound by this standard where "* * * the evidence is documentary or where it involves the actual examination of a product * * *." Deep Welding, Inc. v. Sciaky Bros., Inc., 7 Cir., 1969, 417 F.2d 1227, 1229, cert. denied, 1970, 397 U.S. 1037, 90 S.Ct. 1354, 25 L.Ed.2d 648. In the instant case although there was no parol testimony concerning some of the uncited prior art upon which the District Court relied to hold the patent invalid, we can and must consider those along with all the other properly admitted evidence of the case. And of course, some familiar principles guide us in the review of these facts:

"* * * even though the disclosures of the prior art may fall short of `complete anticipation,\' anticipation may be found where achieving complete anticipation only required that one of ordinary skill in the art merely exercised that skill to complete the work. Leishman v. General Motors Corp., 191 F.2d 522, 530-531 (9th Cir. 1951). * * * while it is preferable that `all of the elements of the patented device or their equivalents * * * be found in a single prior device,\' it is sufficient for anticipation `if the general aspects are the same and the difference in minor matters is only such as would suggest itself to one of ordinary skill in the art.\' Ampehnol Corp. v. Gen\'l Time Corp., 397 F.2d 431, 437-438 (7th Cir. 1968). Thus, rejection or invalidity may be properly based on a combination of references or the prior art taken as a whole. Gen\'l Time Corp. v. Hansen Mfg. Co., 199 F.2d 259, 264 (7th Cir. 1952); Akron Brass Co. v. Elkhart Brass Mfg. Co., 353 F.2d 704, 706 (7th Cir. 1956); In re Young, 403 F. 2d 754, 757-758 (Cust. & Pat.App. 1968); and Koehring Co. v. E. D. Etnyre & Co., 254 F.Supp. 334, 361 (N. D.Ill.1966). In this respect, the prior art is cumulative. Amerline Corp. v. Cosmo Plastics Co., 407 F.2d 666, 669-670 (7th Cir. 1969), and In re Lemelson, 397 F.2d 1006, 1009 (Cust. & Pat.App.1968). * * * we must evaluate all prior art references, domestic and foreign, for what they fairly teach one skilled in the art including nonpreferred embodiments.

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