Sanders Brine Shrimp v. Bonneville Artemia Intern.
| Decision Date | 07 July 1997 |
| Docket Number | No. 94-NC-085.,94-NC-085. |
| Citation | 970 F.Supp. 892 |
| Parties | SANDERS BRINE SHRIMP COMPANY, L.C., Plaintiff, v. BONNEVILLE ARTEMIA INTERNATIONAL, INC., Defendant. |
| Court | U.S. District Court — District of Utah |
Raymond J. Etcheverry, C. Kevin Speirs of Parsons Behle & Latimer, for Salt Lake City, UT, for Plaintiff.
Stephen T. Hard, Rebecca S. Parr of Giaugue, Crocket, Bendinger & Peterson, M. Reid Russell, Salt Lake City, UT, for Defendant.
Oral Argument was heard on Defendant's Motion for Summary Judgment or in the alternative for Partial Summary Judgment and on Plaintiff's Cross-motion for Partial Summary Judgment. Plaintiff is represented by Raymond J. Etcheverry and C. Kevin Speirs of Parsons Behle & Latimer. Defendant is represented by Stephen T. Hard and Rebecca S. Parr of Giauque, Crocket, Bendinger & Peterson and M. Reid Russell. Being fully advised, the Court now enters its Memorandum Decision and Order.
This case arises from alleged patent infringement by Bonneville Artemia International ("BAI") of a patent owned by Sanders Brine Shrimp Company ("Sanders"), i.e., the 4,839,062 patent ("'062 patent"). The patent generally covers a device and method of using a pontoon type floating device with a skimming apparatus for harvesting brine shrimp eggs naturally found in slicks at the surface of a body of water.
BAI employs a device and method for harvesting brine shrimp eggs from the Great Salt Lake which Sanders alleges infringes the '062 patent. Brine shrimp harvesting takes place during the winter months when brine shrimp eggs rise to the surface of the water and form slicks on the open lake. These slicks comprise eggs "entrained" at and just below the water surface, typically at depths from one-eighth to one-quarter inch. While the egg slicks originate out in the lake eventually the slicks drift to the shoreline. Prior harvesting methods typically involved manually raking of the brine shrimp eggs into bags from the shoreline. The '062 patent claims harvesting devices and methods for harvesting eggs in their natural state on the lake rather than by harvesting them from shore.
Sanders first publicly used the invention in October, 1986, and filed an original patent application on June 1, 1987 (the "parent application"). The parent application was abandoned and Sanders filed a continuation-in-part ("CIP") application on December 29, 1987. The CIP application modified the specification, altered the patent claims and added method claims. The CIP application matured into the '062 patent on June 13, 1989.
Sanders previously litigated alleged infringement of the '062 patent. In 1993, Sanders brought an action against Salt Lake Brine Shrimp, Inc., for patent infringement in this Judicial District before Judge Dee Benson. Salt Lake Brine Shrimp, Inc. v. Sanders Brine Shrimp Co., No. 2:89-cv-812B (D. Utah 1993), aff'd, 1995 U.S. App. LEXIS 14255, 61 F.3d 918 (Table)(Fed.Cir.1995). In that case, on April 4, 1994, Judge Benson adopted a Report of the Special Master, in which the court found literal patent infringement as well as infringement under the doctrine of equivalents.1
The BAI device and method, which allegedly infringes the '062 patent, comprises a pontoon boat which supports a platform, an oil containment boom which encircles an egg slick, and a box-like working platform which is lowered into the water. BAI draws the boom tight, purposely causing the eggs to congeal and agglomerate under pressure to form a "cake" four to eight inches thick. BAI then submerges the box-like platform at least four inches below the water. BAI workers wade out to the front of the platform with rakes and shovels, break off chunks or "bergs" of the eggs from the cake, and manually pull the bergs closer to the working platform. The rear portion of this structure has three sides Portals for hoses used to pump the eggs into porous bags are set at the bottom of the rear vertical wall. These portals are positioned below the front leading edge of the working platform as the bottom surface of the platform descends from the front leading edge to the rear vertical wall of the structure. Workers allow water to mix with the bergs to create a thick, mud-like slurry which is manually pushed toward the back of the platform where it is then pumped into the porous bags. BAI uses slightly differing devices for the different harvest seasons. The more advanced devices which were employed between 1993 and 1996 are the subject of this lawsuit.2
The '62 patent claims a method and device for harvesting brine shrimp eggs. The method comprises the steps of positioning a concentrating funnel slightly below the layer of brine shrimp eggs at the surface level of a body of salt water, moving the concentrating funnel forward with respect to the eggs to collect a portion of the layer, and pumping the slurry mixture of eggs and salt water into a porous container which passes the salt water and retains the eggs. The device for implementing the method comprises a platform and attached channeling structure with a receiving end and a smaller, rearward feeding end. The channeling structure includes a height adjustment mechanism for selectively raising and lowering a forward leading edge of the channeling device to a depth of just below the egg layer. Portals located at the rearward feeding end of the channeling structure enable plumbing hardware to transport the eggs and salt water slurry into porous bags.
Claims 1-4, 8, 15-18 and 20 are the subject of this suit. Claims 1-4 are method claims, wherein claim 1 is an independent method claim, claim 2 is dependant on claim 1 and claims 3 and 4 are dependant on claim 2. Claim 8 is an independent device claim from which claim 15-18 are dependant. Claim 20 is an independent device claim. The focus of this case is on the three independent claims, i.e., claims 1, 8 and 20.
Claim I reads:
1. A method for harvesting brine shrimp eggs comprising the steps of:
locating a layer of buoyant brine shrimp eggs on a body of salt water; positioning a concentrating funnel having a flat leading edge and a lower trailing inlet port in the salt water with the flat leading edge slightly below the layer of brine shrimp eggs and surface level of the body of water; causing relative movement between the leading edge of the concentrating funnel and the eggs to collect a portion of the layer of eggs within the funnel and inlet port as a slurry mixture of salt water and eggs; pumping the slurry mixture to at least one porous receiving container which passes the salt water and retains the collected brine shrimp eggs.3
Claim 8 reads:
8. A device for gathering brine shrimp eggs from the surface of a body of water, comprising:
a platform having a forward section, a support surface, lateral edges and a rearward section;
flotation means coupled to the platform for maintaining sufficient buoyancy to keep the platform floating at the surface of the water;
channeling structure having a forward receiving end and rearward feeding end, said forward end including a base plate with a flat, leading edge adapted for positioning immediately below the shrimp eggs at the water surface, said channeling structure being coupled to the forward section of the platform and being adapted to receive water and entrained shrimp eggs at the channel receiving end and to channel the entrained eggs toward the feeding end,
height adjustment means coupled to the channel structure for providing adjustment of the height of the leading edge to a depth slightly below the surface of the water and entrained eggs to thereby collect the entrained eggs within the channel structure;
extraction means positioned at the feeding end and having an intake opening adapted to receive the entrained eggs and transport them to a storage location; at least one porous contained capable of separating brine shrimp eggs from a slurry of eggs and salt water;
means for delivering the slurry' received at the extraction means to the porous container.4
Claim 20 reads:
20. A device for gathering brine shrimp eggs from the surface of a body of water, comprising channeling structure having a large, open, forward receiving end and a small rearward feeding end for collecting water and entrained brine shrimp eggs, said channeling structure being adapted to receive water and entrained shrimp eggs at the channel receiving end and to channel the entrained eggs toward the feeding end;
a flat leading edge attached at the forward receiving end and being adapted for use immediately below the surface of the water at a depth no greater than one inch to divide off suspended brine shrimp eggs at the surface of the water for delivery into the channeling structure;
means for positioning and maintaining the channeling structure approximately at the surface of the water, said leading edge being selectively positionable at a depth of less than one inch below the water surface;
extraction means coupled to the feeding end of the channeling structure for receiving the entrained eggs for transport to a storage location; and at least one porous container capable of separating brine shrimp eggs from a slurry of eggs and salt water;
means for delivering the slurry received at the extraction means to the porous container.
The substance of BAI's motion for summary judgment or partial summary judgment is that the patent is invalid either under the one-year bar of 35 U.S.C. § 102(b) or through inequitable conduct by Sanders before the Patent and Trademark Office ("PTO") during the prosecution of the patent. In its Reply Memorandum, BAI withdrew its summary judgment motion on the issue of inequitable conduct because Sanders had raised genuine issues of fact regarding its...
To continue reading
Request your trial
-
Velocity Patent LLC v. FCA US LLC
...20. Velocity cites to Broadcom Corp. v. Emulex Corp., 732 F.3d 1325, 1333 (Fed. Cir. 2013) and Sanders Brine Shrimp Co. v. Bonneville Artemia Int'l, Inc. , 970 F.Supp. 892, 904 (D. Utah 1997) in support of its argument that products that infringe some of the time are sufficient for a findin......