SWIFT AGR. CHEMICALS CORP. v. Farmland Industries
| Decision Date | 15 September 1980 |
| Docket Number | Civ. A. No. 78-4153. |
| Citation | 499 F. Supp. 1295,210 USPQ 137 |
| Court | U.S. District Court — District of Kansas |
| Parties | SWIFT AGRICULTURAL CHEMICALS CORPORATION, A Delaware Corporation, Plaintiff, v. FARMLAND INDUSTRIES, INC., A Kansas Corporation, and Farmers Chemical Company, A Kansas Corporation, Defendants. |
John E. Wilkinson, Wilkinson & Graves, Topeka, Kan., John W. Hofeldt, Britton A. Davis, Haight, Hofeldt, Davis & Jambor, J. Calvin Langston, Chicago, Ill., for plaintiff.
J. Donald Lysaught, Weeks, Thomas, Lysaught, Bingham & Mustain, Overland Park, Kan., Warren N. Williams, Schmidt, Johnson, Hovey & Williams, Joseph A. Crites, Kansas City, Mo., for defendants.
This is a patent infringement action brought pursuant to the Patent Statute, 35 U.S.C. § 1, et seq. Plaintiff in this action, Swift Agricultural Chemicals Corporation (hereafter Swift) owns a patent for a process in which:
"Phosphoric acid having P2O5 content of between about 55%-65% is reacted with ammonia under conditions that simultaneously neutralize and molecularly dehydrate the acid whereby at least 20% of the orthophosphate is converted to non-orthophosphate (polyphosphate) and the resulting ammonium polyphosphate possesses self-sequestering properties."1
The process, officially designated as U. S. Letters Patent No. 3,464,808, was invented by one Tommy Carter Kearns, a former employee of Swift, and will be referred to as the '808 or Kearns patent. The patent was acquired on September 2, 1969. A detailed technical explanation of the background of this case is not necessary here, but a brief discussion will perhaps be useful. Agriculturally rich nations, such as the United States and Canada, generally make such intensive use of their tillable land that the essential plant nutrients found in the soil are steadily depleted. Less well-endowed countries, on the other hand, face the problem of growing crops for consumption or export upon land that is either less fertile or less extensive than that possessed by their more fortunate neighbors. One important consequence of this situation is an increased demand for synthetic fertilizers. Such fertilizers may be in either solid or liquid form, and, in addition to their obvious advantages, tend to share certain negative characteristics. These include a high cost of manufacture (traditionally attributed to the necessity of using top-grade phosphoric acid in the manufacturing process), as well as a certain difficulty in application, caused by the tendency of chemical impurities present in the fertilizer to precipitate into a gelatinous sludge that clogs storage tanks and applicator nozzles. The process embodied in the '808 patent is an attempt to resolve the problems usually attendant to the manufacture of synthetic fertilizer, since it is designed to produce in a relatively inexpensive manner a rich product bearing the capacity to hold in suspension, or sequester, those chemical impurities which would otherwise coagulate to make application more difficult. Plaintiff claims that defendants have infringed the '808 or Kearns patent by the unauthorized use of the process described in the patent.
This action was tried to the Court, following extensive discovery by both parties. The parties introduced a very large number of documents into evidence. The case involves only two essential questions: whether the patent is valid; and, if so, whether it has been infringed. These questions, along with related issues, are discussed below. Findings of Fact and Conclusions of Law are separately stated.
Defendants have attacked the validity of the '808 patent on the ground that it was anticipated by prior art. Defendants have drawn attention to the fact that the Kearns patent is a process patent, one in which certain materials are dealt with in a particular manner in order to produce a special result. It is generally recognized that the patentability of a method or process claim "must rest on the method steps recited, not on the structure used, unless that structure affects the method steps." Leesona Corp. v. United States, 530 F.2d 896, 208 Ct.Cl. 871 (1976). See also, Chemical Construction Corp. v. Jones & Laughlin Steel Corp., 311 F.2d 367 (3rd Cir. 1962).
Defendants argue that plaintiff's patent has been anticipated in at least three separate instances. The first such instance involves a patent acquired by one Donald C. Young, U. S. Patent No. 3,044,851, on July 17, 1962. Plaintiff distinguishes the Young and Kearns patents by characterizing the former as a "three-step process" as compared with the "single-step" taught by the Kearns patent. The evidence, however, does not suggest that such a distinction is meaningful. Both processes produce an ammonium phosphate fertilizer having self-sequestering properties. Both do so by reacting ammonia and phosphoric acid for comparable time periods and at comparable temperatures. Similar reactor vessels may be used. The only literal difference between the two processes is that the Young patent speaks of separate heating and neutralization steps, while the Kearns patent describes a process in which both steps occur simultaneously. The Court concludes that this variance between the processes does not mean that the Kearns and Young patents have presented different "methods" to produce the same end. And, as has been previously noted, where process patents are concerned, the nature of the method involved is the crucial factor. Moreover, as defendants have demonstrated, the Young patent teaches "on its face" a simultaneous process, as shown in Figure 8 of the patent.2 In short, the Young patent must be regarded as anticipatory prior art with regard to the Kearns patent.
Defendants also argue that the Kearns patent was anticipated by the work of J. G. Getsinger, U. S. Patent No. 3,382,059.3 Getsinger acquired his patent on May 7, 1968. Plaintiff contends that any comparison between the Kearns and Getsinger patents is inapposite. In particular, plaintiff attempts to distinguish the two processes by alluding to the fact that the Getsinger patent provides for the use of two vessels rather than just one. Further, plaintiff asserts that the vessel in which the pertinent reaction takes place is not a "jet reactor" as called for in the Kearns patent. Finally, plaintiff states that the Kearns patent is markedly different from that of Getsinger, on the theory that the residence time of the latter process is much longer than that of the former.
The Getsinger patent discloses a process for the production of ammonium polyphosphates from wet process phosphoric acid, in which the phosphoric acid is first partially ammoniated at low temperature (250°-350° F) and then fed to a reactor, where it is reacted with a stream of ammonia to form an ammonium polyphosphate melt. The streams of partially neutralized phosphoric acid and ammonia are contacted in reactor vessel No. 6 of the patent, at a preferred temperature of 400°-500° F.
As we have previously discussed, an attempt to distinguish these processes on the ground that the Getsinger patent contemplates a "tank" rather than a "jet" reactor is not a cognizable defense of patentability, since "method" rather than equipment is of crucial importance in a process patent. Leesona Corp. v. United States, supra. And simply because reactor vessel No. 6 is not necessarily depicted as a "pipe" or "jet" reactor does not mean that such a device would be unsuitable to the Getsinger invention, since the claims of a patent generally are not strictly limited to a device described in the specifications or depicted in a drawing. Arnold Pipe Rentals Co. v. Engineering Enterprises, Inc., 350 F.2d 885 (5th Cir. 1965); Ziegler v. Phillips Petroleum Co., 483 F.2d 858 (5th Cir. 1973).
The fact that the Getsinger patent utilizes two vessels is likewise of negligible importance. This is so because the essence of the patent is found in the chemical reaction which takes place in reactor vessel No. 6. The Getsinger patent involves a continuous process, the nature and final product of which are the same as those in the '808 patent. The evidence indicates that the same simultaneous neutralization and molecular dehydration of the acid which is crucial to the '808 patent occurs in reactor vessel No. 6 of the Getsinger patent, since that vessel is the only place where the appropriate temperatures and pressures are present. Furthermore, an ammonium polyphosphate solution with self-sequestering properties is the product of both processes.
A third area of dispute between the parties as to the Getsinger patent concerns the residence time attributable to the process. The Getsinger patent states that the "retention" time of the process is from one (1) to one hundred eighty (180) minutes.4 Since the Kearns patent calls for a residence time of less than one (1) second, it would seem clear that there could have been no anticipation of Kearns by Getsinger. The Getsinger patent, however, defines "retention" time in terms of the period during which the melt remains in the reactor.5 Plaintiff argues that Getsinger's representations as to the "retention" time are conclusive on the point. Defendants, however, have approached the problem in a different manner. A central question in this lawsuit, on the issue of infringement, is the residence time of defendants' process. Plaintiff has defined "residence" (or "contact") time as follows:
"... The `period' referred to in Claim 1 of the patent is the average time during which the reaction product, consisting of molten ammonium polyphosphate, superheated steam and unreacted ammonia, is in the reactor at temperatures of between about 450° F. and about 650° F."6
Plaintiff calculates this time period in the following manner:
"... The internal volume of the reactor pipe is ascertained, the volumes per second of the reaction product,...
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