Studiengesellschaft Kohle, m.b.H. v. Dart Industries, Inc.
| Citation | 220 USPQ 841,726 F.2d 724 |
| Decision Date | 19 January 1984 |
| Docket Number | No. 83-591,83-591 |
| Parties | STUDIENGESELLSCHAFT KOHLE, M.B.H., Appellee, v. DART INDUSTRIES, INC., Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals for the Federal Circuit |
Thomas F. Reddy, Jr., New York City, argued for appellant. With him on the brief were Gerald J. Flintoft, Stanton T. Lawrence, III, Brian M. Poissant and Arthur G. Connolly, Jr., New York City.
Arnold Sprung, New York City, argued for appellee. With him on the brief was Nathaniel Kramer, New York City.
Before MARKEY, Chief Judge, and RICH and DAVIS, Circuit Judges.
This appeal is from the interlocutory judgment of the United States District Court for the District of Delaware (Wright, J.), holding U.S. patent No. 3,113,115 to Ziegler et al. (Ziegler patent) valid, enforceable, and infringed by appellant Dart Industries, Inc.'s catalytic production of commercial grade polypropylene and ordering an accounting. 549 F.Supp. 716, 216 USPQ 381 (D.Del.1982). We affirm and remand for an accounting.
The technical facts concerning the claimed catalysts and Dart's allegedly infringing process, as well as other matters essential to understanding this case, have been painstakingly set forth in the extensive opinion of the trial court, familiarity with which is assumed, and will be repeated herein only as strictly necessary. The unusually thorough and meticulously detailed opinion of Judge Wright with 157 footnote references and explanations manifests a comprehensive grasp of the facts and the applicable law so that we deem it sufficient to treat summarily the issues argued on this appeal. It suffices here by way of introduction to the case, to say that it involves the oft-litigated but now expired Ziegler patent for catalysts used in the polymerization of ethylene and other lower olefins, which includes propylene. The involved claims are very broad, and define with varying specificity catalysts made of an alkyl aluminum compound and a heavy metal salt, oxide, or hydroxide. * Attention in this case has focused on a preferred catalyst made of an alkyl aluminum halide and a titanium halide.
Dart uses in its process a catalyst made of diethyl aluminum monochloride (DEAC) and titanium trichloride.
At trial, Dart asserted that the invention claimed in the Ziegler patent was anticipated under 35 U.S.C. Sec. 102 by that described in German patent No. 874,215 to Fischer (Fischer patent). Dart also asserted that the claimed catalysts would have been obvious under 35 U.S.C. Sec. 103 from the Fischer patent and two articles written jointly by Hall and Nash. It further asserted that the Ziegler patent had been obtained by fraud and for that reason was unenforceable. Dart also denied infringement, either literal or under the doctrine of equivalents, and maintained that appellee, Studiengesellschaft Kohle m.b.H. (herein SGK), Ziegler's successor in interest, should be barred from maintaining suit under the equitable principles of laches and estoppel. These same grounds of invalidity or unenforceability have been reargued before us. We shall take them up in order.
Dart argues, contrary to well-established law, that the trial court made an error of law in holding that anticipation must be found within a single reference. It points out that other references may be used to interpret that reference and to reveal what it would have meant to one of ordinary skill at the time the invention was made. Specifically, Dart contends that Fischer, "taken with the clear and directly applicable disclosure of the Hall and Nash publications demonstrating the extent of knowledge of one skilled in the art ... does clearly and unambiguously indicate that a mixture of diethyl and monoethyl aluminum chlorides is formed under the Fischer reaction conditions." (Emphasis in original.)
The district court correctly stated the law regarding anticipation. It is hornbook law that anticipation must be found in Apart from this argument, Dart also relies upon the testimony of its expert, and accuses the trial court of having relied only on "certain limited, isolated, out of context and misleading testimony" to support its conclusion. It does not matter, however, that Dart on appeal may be able to reconstruct its proofs to show that another factual conclusion could have been reached. Dart must show that the conclusion which was reached was clearly erroneous. It has not done so. Our review of the testimony as cited by the trial court and the parties leads us to the conclusion that the trial court's findings on anticipation were not in error, and they are affirmed.
a single reference, device, or process. Dart's reliance on the caveat to that rule permitting the use of additional references to interpret the allegedly anticipating reference is misplaced. The trial court was not only aware of this caveat, but also applied it in a thorough and convincing manner. Dart relies on the Hall and Nash articles for a very specific teaching, not for any light they shed on what Fischer would have meant to those skilled in the art in his day. What Dart asked the trial court to do, and what it would have us do on appeal, is to combine the teachings of the references to build an anticipation. That would be contrary to settled law, and the trial court was correct in refusing to do so.
Dart's position on obviousness is that "From the teachings of the Fischer and the Hall and Nash publications it would have been obvious in 1953 to polymerize ethylene to a solid polymer using a mixture of titanium tetrachloride and ethyl aluminum sesquichloride as the catalyst." It accuses the trial court of magnifying inconsequential differences in reaction conditions and products between Fischer and Hall and Nash. It relies on Ziegler's own statements in which he characterized Fischer's process as a forerunner of his invention. It also relies on an alleged nearly simultaneous invention by others at DuPont, including a Dr. Anderson, and ascribes to the trial court errors in its assessment of the level of skill of those others, their number, and the intensity of their efforts. It attempts to discredit the commercial success and solution of unmet needs attributed to the invention of the Ziegler patent by raising the possibility that some of both may be attributable to other Ziegler catalysts and processes.
The trial court's analysis more than meets most of these contentions, and withstands all of them. We agree with the trial court that the Ziegler patent catalyst would not have been obvious. The evidence clearly shows that the cause of the catalysts in Fischer was a mystery to his contemporaries who were skilled in the art. Absent hindsight, there is no indication that Hall and Nash's work in synthesizing lubricating oils could have provided or in fact did provide a key to unlock that mystery. We agree with the trial court that Ziegler's statements on Fischer were a product of hindsight. While there may have been no basis in the record for the trial court's assumption that Dr. Anderson was a man of more than ordinary skill, Dart's evidence of nearly simultaneous solution by others is simply not persuasive under the circumstances. Even if some of the commercial success and satisfaction of unmet needs is attributable to other Ziegler inventions, the record nonetheless contains sufficient evidence of commercial success attributable to the Ziegler patent catalysts involved herein to support their nonobviousness. The trial court's conclusion to that effect is therefore affirmed.
Dart also argues that the trial court rendered a legally insufficient finding on fraud. The trial court said: In a footnote, the trial court explained its terseness when it noted that "although mentioned in the pre-trial stipulation ... there was no testimony on this subject at trial and that it was first developed in the defendant's post-trial briefs." Thus, the A problem potentially occasioned by the brevity of the trial court's comments is that the lack of explicit factual findings may have jeopardized this court's ability to review this issue...
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