Ralston Purina Co. v. Far-Mar-Co, Inc.

• Decision Date: 18 April 1984
• Docket Number: No. 76 426 C6.,76 426 C6.
• Citation: 586 F. Supp. 1176
• Parties: RALSTON PURINA COMPANY, A Corporation, Plaintiff, v. FAR-MAR-CO, INC., A Corporation, Defendant.
• Court: U.S. District Court — District of Kansas

586 F. Supp. 1176

RALSTON PURINA COMPANY, A Corporation, Plaintiff, v. FAR-MAR-CO, INC., A Corporation, Defendant.

No. 76 426 C6.

United States District Court, D. Kansas.

April 18, 1984.

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Randall G. Litton, Richard C. Cooper, Price, Heneveld, Huizenga & Cooper, Grand Rapids, Mich., Paul B. Swartz, Martin, Pringle, Schell & Fair, Wichita, Kan., for plaintiff.

Foulston, Siefkin, Powers & Eberhardt, Wichita, Kan., Warren N. Williams, Schmidt, Johnson, Hovey & Willians, Kansas City, Mo., for defendant.

MEMORANDUM AND ORDER

CROW, District Judge.

The complaint in this action, filed October 1, 1976, alleges that defendant has in the past and continues to infringe certain claims of U.S. Patent No. 3,940,495 issued on February 24, 1976. The complaint requests damages for past infringement including the trebling thereof, an injunction enjoining future infringement by defendant, and attorney fees. The parties have agreed to reserve an accounting for damages until after a finding by the court of patent validity and infringement by Far-Mar-Co (Pretrial Order, pp. 1 & 2, Dk. # 172).

Defendant denies infringement, asserts affirmative defenses of patent invalidity and/or unenforceability, has counterclaimed for a declaration pursuant to 28 U.S.C. § 2201 and § 2202 of patent invalidity and/or unenforceability, and seeks to recover its costs and attorney fees. Defendant has also asserted counterclaims premised on the Sherman and Clayton Acts (Answer and Counterclaim, Dk. # 8). By earlier order of this court, these claims were separated from the patent issues and await trial at a later date (Dk. # 165).

The trial of this case spanned the period from August 2, 1982 through August 25, 1982. The record before the court includes the testimony of 14 witnesses appearing at trial, together with the deposition testimony of 44 persons. A relatively small portion of the deposition testimony was read at trial. Over 1300 individual exhibits were admitted, a few of which are duplicates and many of which are multiple page documents. On September 10, 1982, closing arguments were held, and modified findings of fact and conclusions of law were filed. The parties thereafter submitted post-trial briefs, the last of which was filed January 19, 1983. The court has carefully reviewed the testimony and exhibits, examined the proposed findings and briefs, and has endeavored to address all of the issues advanced at trial.

FINDINGS OF FACT

I. General Findings

1. Plaintiff Ralston Purina Company (hereinafter Ralston) is a Missouri corporation having its principal place of business at Checkerboard Square, St. Louis, Missouri 63188 (Pretrial Order Stipulation, Dk. # 172).

2. Defendant Far-Mar-Co, Inc. (hereinafter Far-Mar-Co) is a Kansas corporation having its principal place of business at 1600 N. Lorraine, Hutchinson, Kansas 67501 (Pretrial Order Stipulation, Dk. # 172).

3. The patent-in-suit, No. 3,940,495, entitled "Protein Product and Method of Forming Same," lists Ronald J. Flier as inventor and the Ralston Purina Company as assignee (R200).

4. U.S. Patent No. 3,940,495 issued from patent application Serial No. 324,295, filed January 17, 1973, which was a continuation of application Serial No. 600,471, filed December 9, 1966, which was a continuation-in-part of application Serial No. 381,853, filed July 10, 1964 (Pretrial order stipulation, Dk. # 172). (Application No. 600,471 will hereinafter be referred to as the "1966 application" or the "CIP application" and Application No. 381,853 will hereinafter be referred to as the "1964 application" or the "parent application.")

5. Plaintiff has been and remains the owner of the patent-in-suit since its issuance (Pretrial Order Stipulation, Dk. # 172).

II. The Invention of the Patent-in-Suit

6. The invention which is the subject of the Flier Patent in this lawsuit is the first successful process, and resultant product, for directly and continuously restructuring oil seed particles, preferably soy particles, into a textured, chewable, fibrous, meat-like food product.

7. Restructuring is basically accomplished by extrusion working defatted, moistened soy particles under elevated temperature and pressure, into a flowable, plastic mass which is expanded into a restructured, fibrous, meat-like food product by suddenly releasing the pressure (R200; Tr.Tr. pp. 161-65).

8. Claims 1 and 18, two of the broader independent claims of the patent, read as follows:

"1. A method of treating a protein-containing vegetable material having no more than a minor amount of fat and a protein content of at least about that of solvent-extracted soybean meal to form a porous fibrous food product comprising the steps of: moistening the protein-containing vegetable material to a moisture content of at least about 20% by weight and maintaining the pH of the mixture in a range which is slightly above or slightly below the neutral point of the vegetable material; mechanically working the moistened protein-containing vegetable material under temperatures in excess of 212°F. and elevated pressures; forcing the heated, pressurized, mechanically worked material through first restricted orifice means, maintaining the material under elevated temperatures and pressures as it emerges from said first restricted orifice means; the heat, pressure and mechanical working of the material prior to passage through said first restricted orifice means and the heat and pressure applied to said material after passage through said first restricted orifice means being such that upon release of the pressure it has the capability of forming a fibrous structure and then extruding the material through second restricted orifice means into an environment of a pressure substantially lower than said elevated pressures causing expansion of the product with moisture evaporation and the formation of a puffed and fibrous meat-like structure.

* * * * * *

18. The method of restructuring a soybean material to form a food product from a predominately solvent-extracted soybean material, comprising the steps of mixing said solvent-extracted soybean material having a protein content at least about that of solvent-extracted soybean meal with sufficient water to permit the resulting mixture to be passed through an extruder; confining the mixture within an extruder and increasing the pressure and temperature of the mixture while subjecting it to mechanical working until the mixture, upon release of the pressure, is capable of becoming a fibrous structure, said temperature during said mechanical working being increased substantially above 212°F.; and forcing the mechanically worked, heated mixture under pressure through a restricted orifice, upon discharge from which the pressure is released, whereby the mixture is restructured into a puffed product of reduced density having a meat-like texture."

9. The screw-type extruder which may be employed to practice the process consists essentially of a barrel having a helical screw mounted inside which is rotated axially by a drive motor. One end of the barrel is closed off except for one or more restricted orifices through which the extruded product exits to the atmosphere. The other end of the barrel is open to permit flow of the material to be processed to the screw. Intermediate dies or restrictions such as steam locks may be provided along the length of the barrel to increase pressure and mechanical working of the material. The schematic drawing of the patent-in-suit shows an extruder having an intermediate flow-impeding restriction plate. The barrel, typically, is also provided with cooling and/or heating jackets along its length whereby, for example, the intake section is cooled by a medium such as cold water and the section near the final die is heated by a medium such as steam. See generally R200, cols. 5 & 6; R235; R236; F-1566.

Pioneer Contribution to the Art of Texturizing Soy Protein

10. Prior to Flier's process utilizing extrusion technology, the art of texturizing soy protein was limited to the spinning process invented by Robert Boyer and patented in 1954 (R213). Boyer, who conceived the notion that a textured, meat-like product could be obtained from soy material, utilized textile technology to create a spun textured product from soy isolate (R222, p. 10). The process, however, was, and remains, expensive, and as meat substitute the spun product has not been price competitive with real meat (Tr.Tr. p. 127).

11. Subsequent to the Flier invention, the term extruded textured vegetable protein products has become recognized by industry and government. Extruded textured vegetable protein products are made by mixing defatted soy flour of protein content about fifty percent, but varying as low as about forty-four percent and has high as about seventy percent, with water (and adding flavor, color and various nutrients as desired), and passing the mixture through an extruder under conditions which cause the mixture to puff upon exiting the extrusion die. This process causes the extruded product to be expanded and to exhibit a fibrous characteristic in its structure. After extrusion, the products are typically dried to approximately eight percent moisture and have a shelf life stability for at least a year under normal conditions of storage. They are capable of being rehydrated without losing structure and shape and have a chewy texture. One part of the dry product absorbs approximately two-three parts of water. The bacterial count is normally low. In addition to water absorption, they also have good fat absorptive properties. They can be colored and flavored to resemble many types of familiar foods. In the most popular commercial form, they contain approximately fifty percent protein (R260 â Defendant's Admission 113).

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